Judgments

[1993] 2 F.C. 138

A-69-91

The Canadian Cable Television Association— Association canadienne de télévision par cable (Appellant)

v.

The Copyright Board, Performing Rights Organization of Canada Limited and Composers, Authors and Publishers Association of Canada Limited (Respondents)

Indexed as: Canadian Cable Television Assn. v. Canada (Copyright Board) (C.A.)

Court of Appeal, Heald, Desjardins and Létourneau JJ.A.— Toronto, December 7, 8, 9 and 10, 1992; Ottawa, January 5, 1993.

Copyright — Appeal from Trial Division decision dismissing application to prohibit Copyright Board from proceeding with adoption of tariff under Copyright Act, s. 67 — Appellant transmitting “non-broadcast services” to subscribers — Not communicating musical works to public by telecommunication under Act, s. 3(1)(f) as amended — “Copyright” including sole right to communicate musical, literary, dramatic or artistic work to public by telecommunication under s. 3(1)(f) — Appellant performing musical works in public under s. 3(1) — Definition of “performance” in s. 2 including any acoustic representation — Meaning of “in public” — Appellant authorizing performance of musical works.

Telecommunications — Appellant transmitting “non-broadcast” specialty services to subscribers — Not communication of musical works to public by telecommunication under Act, s. 3(1)(f) as amended — Transmission of non-broadcast services, in relation to musical works, performance in public — SCC decision in CAPAC case distinguished — Performance of musical works authorized by appellant.

This was an appeal from a decision of the Trial Division dismissing an application to prohibit the Copyright Board from proceeding with the adoption of Tariff No. 17 proposed by the respondents under section 67 of the Copyright Act. That tariff required a “transmitter” of “non-broadcast services to its subscribers” to pay a fee for “a licence to perform or to communicate by telecommunication” a work over which the respondents Societies have the “power to grant a performing licence”. The appellant transmits “non-broadcast services”, those that do not originate from a regular television broadcasting station (services such as “Much Music”), to its subscribers via electrical signals over a closed circuit network. The issues were 1) whether the appellant communicates musical works to the public, 2) whether it performs musical works in public and 3) whether it authorizes the performance of such works.

Held, the appeal should be dismissed.

1) In relation to musical, literary, dramatic or artistic work, “copyright” includes under paragraph 3(1)(f) of the Copyright Act the sole right to communicate the work to the public by telecommunication. The respondents’ argument, that the words “musical work” as defined in section 2 of the Act and “musical composition” may be used interchangeably, defies the most basic rules of legislative drafting and interpretation. Definitions are used for convenience and to bring more precision to a legislative text. They are meant to be of assistance to legislative drafting, not to bring confusion to legislative interpretation. The definition of “every original literary, dramatic, musical and artistic work” in section 2 of the Act makes it obvious that “musical work” is not meant to refer to or to include “composition with or without words” as the legislator opposes the two notions in that definition. The Copyright Act has been amended at least three times since the decision of the Supreme Court of Canada in Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limited et al. (CAPAC) and Parliament has never questioned the interpretation given to “musical works” by the Court. As the definitions of “musical works” and “performance” have remained unchanged, paragraph 3(1)(f) of the Act should have been amended to refer to “communication of the performance of musical works” in order to cover the acts of the appellant. The Supreme Court refused to make the legislative change and the Court is bound by that decision.

2) The definition of “performance” in section 2 speaks of any acoustic representation; it does not refer to acoustic waves as opposed to electro-magnetic waves or vice-versa. The word “includes” is generally not limitative and is certainly not apt in this context to limit Parliament’s intention to cover all kinds of acoustic representations. As to whether appellant’s transmission amounts to a public performance, there is Canadian authority to the effect that radio or television broadcasts do not constitute performances in public when received in private homes. The contrary views expressed by English, Indian and Australian authorities are preferable. They are consistent with our Act and with the plain and usual meaning of the words “in public”, that is to say openly, without concealment and to the knowledge of all. In addition, they take a realistic view of the impact and effect of technological developments. Transmission of non-broadcast services by the appellant to its numerous subscribers, when it relates to musical works, is a performance in public within the meaning of subsection 3(1) of the Copyright Act.

3) The Trial Judge was correct in holding that the situation of the appellant is different from that of the CTV network in the CAPAC case. CTV was transmitting its programs to affiliated stations which broadcasted the musical works to the public, whereas CCTA transmits directly to the public. The appellant is more than a mere facilitator of a public performance which violates the Copyright Act, it is the actual performer with the assistance of a third party who completes the final and missing link by turning on the television set. If the subscriber is to be ultimately responsible for the materialization of the public performance and therefore the infringement of the copyrights, one must conclude, upon a plain or a constructive meaning of the word “authorization”, that the appellant authorizes such materialization by its customers.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Copyright Act and to amend other Acts in consequence thereof, S.C. 1988, c. 15, s. 1.

Canada-United States Free Trade Agreement Implementation Act, Bill C-2, First Reading, ss. 61, 62.

Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61, 62, 63, 64, 65.

Copyright Act, 1911 [1 & 2 Geo. 5, c. 46].

Copyright Act, R.S.C. 1952, c. 55, s. 3(1)(f).

Copyright Act, R.S.C., 1985, c. C-42, ss. 2 (as enacted by S.C. 1988, c. 65, s. 61), 3(1)(f) (as am. idem, s. 62), 5, 28, 66.52 (as enacted idem, s. 64), 67 (as am. by R.S.C., 1985 (4th Supp.), c. 10, s. 12), 70.61 (as enacted idem, s. 65).

Free Trade Agreement, S.C. 1988, c. 65, Schedule, Part A, Art. 2006.

Integrated Circuit Topography Act, S.C. 1990, c. 37, s. 33.

Interpretation Act, R.S.C., 1985, c. I-21, s. 35(1).

Rome Copyright Convention, 1928, R.S.C., 1985, c. C-42, Schedule III, art. 11 (bis).

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limited et al., [1968] S.C.R. 676; (1968), 68 D.L.R. (2d) 98; 55 C.P.R. 132; 38 Fox Pat. C. 108 (as to appellant not communicating musical works to the public by telecommunication).

APPLIED:

Messager v. British Broadcasting Co., [1927] 2 K.B. 543; Garware Plastics and Polyester Ltd. v. M/S Tele-link A.I.R. 1989 Bombay 331; Chappell& Co. Ltd. v. Associated Radio Co. of Australia Ltd., [1925] V.L.R. 350 (S.C.); Mellor v. Australian Broadcasting Commission, [1940] 2 All E.R. 20 (P.C.).

NOT FOLLOWED:

Canadian Admiral Corpn. Ltd. v. Rediffusion, Inc., [1954] Ex. C.R. 382; (1954), 20 C.P.R. 75; 14 Fox. Pat. C. 114.

DISTINGUISHED:

Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limited et al., [1968] S.C.R. 676; (1968), 68 D.L.R. (2d) 98; 55 C.P.R. 132; 38 Fox Pat. C. 108 (as to appellant transmitting musical works directly to the public).

REFERRED TO:

CTV Television Network Ltd. v. Canada (Copyright Board), [1993] 2 F.C. 115 (C.A.).

AUTHORS CITED

Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed., Cowansville, Quebec: Les Éditions Yvon Blais Inc., 1991.

Tremblay, Richard et al. Guide de rédaction législative, Montréal: Société québécoise d’information juridique, 1984.

APPEAL from a decision of the Trial Division ((1991) 34 C.P.R. (3d) 521; 41 F.T.R. 1 (F.C.T.D.)) dismissing an application to prohibit the Copyright Board from proceeding with the adoption of Tariff No. 17 proposed by the respondents under section 67 of the Copyright Act. Appeal dismissed.

COUNSEL:

Michael K. Eisen and Stephen G. Rawson for appellant.

Mario Bouchard for respondent Copyright Board.

Y. A. George Hynna, C. Paul Spurgeon and Gilles Marc Daigle for respondents Performing Rights Organization of Canada Limited and Composers, Authors and Publishers Association of Canada Limited.

SOLICITORS:

Morris/Rose/Ledgett, Toronto, for appellant.

Legal Services, Copyright Board, Ottawa, for respondent Copyright Board.

Gowling, Strathy & Henderson, Ottawa, for respondents Performing Rights Organization of Canada Limited and Composers, Authors and Publishers Association of Canada Limited.

The following are the reasons for judgment rendered in English by

Létourneau J.A.: This is an appeal by the Canadian Cable TV Association (“CCTA”) from a decision of a judge of the Trial Division [(1991), 34 C.P.R. (3d) 521] dismissing an application to prohibit the Copyright Board from taking further proceedings with respect to Tariff No. 17 proposed by the respondents societies PROCAN and CAPAC under section 67 of the Copyright Act, R.S.C., 1985 c. C-42 [as am. by R.S.C., 1985 (4th Supp.), c. 10, s. 12].

The Facts

The appellant is a corporation composed of some 619 cable television licensees and system operators in Canada. Its self-described role is to promote its members’ interests and to reconcile those interests with the interests of cable television subscribers and the general public. It holds a distribution undertaking licence.

The respondent Societies, the Performing Rights Organization of Canada Limited (“PROCAN”) and Composers, Authors and Publishers Association of Canada Limited (“CAPAC”), are performing rights societies currently in the process of merging. They own and administer the performance rights to a variety of musical works in Canada. The Societies grant licences for the performance of those works in Canada and collect and distribute royalties pursuant to statements of royalties certified by the Copyright Board.

Pursuant to statements of proposed tariffs filed by the respondents Societies, the Copyright Board published proposed Tariff No. 17 in the Canada Gazette on September 30, 1989 [123 Canada Gazette, Part 1, Supplement (September 30, 1989)]. Tariff No. 17 required a “transmitter” of “non-broadcast services to its subscribers” to pay a fee for “a licence to perform or to communicate by telecommunication” a work over which the Societies have the “power to grant a performing licence”.

“Non-broadcast services” are those that do not originate from a regular television broadcasting station and include such speciality services as “Much Music” and “Arts and Entertainment”. CCTA transmit these services to their subscribers via electrical signals over a closed circuit network. There are apparently 7 million subscribers to cable television in Canada; 97% of which are residential customers and 6.3 million of whom subscribe from CCTA members. The remainder are commercial subscribers such as rental and hotel units, hospitals, schools, restaurants and bars.

After the CCTA filed objections to the proposed tariff, the Copyright Board convened a pre-hearing conference on May 23, 1990. At the outset, the CCTA stated its belief that Tariff No. 17 was unenforceable against cable television systems because their transmissions do not involve any of the acts involved in section 3 of the Copyright Act [as am. idem, s. 2; S.C. 1988, c. 65, s. 62] as the transmissions are not public performances of musical works nor a communication of same to the public. On this basis, CCTA indicated that it was preparing an application for a prohibition order. The Board responded that, in the absence of court decisions to the contrary, it intended to proceed. On June 14, 1990, the CCTA obtained an order of the Federal Court staying the Board from any consideration of Tariff No. 17 until final disposition of the matter. On January 16, 1991, the learned Trial Division Judge finally dismissed the application for prohibition.

The Substantive Issues

This appeal raises three issues under section 3 of the Copyright Act with respect to the appellant’s transmission of musical works to its subscribers. This Court is called upon to determine whether the appellant CCTA communicates musical works to the public, whether it performs musical works in public and whether it authorizes the performance of such works. These are the alleged foundation for Tariff No. 17 which is the subject of this attack by way of prohibition.

Whether appellant CCTA communicates musical works to the public by telecommunication within the meaning of paragraph 3(1)(f) of the Copyright Act

Broadly stated, section 3 of the Copyright Act defines “copyright” as the sole right to produce, reproduce or publish a work or any substantial part thereof in any material form whatever, or the sole right to perform it in public. In relation to musical, literary, dramatic or artistic work, it also includes under paragraph 3(1)(f) the sole right to communicate the work to the public by telecommunication.

On the basis of paragraph 3(1)(f), the respondents submit that appellant CCTA, in its transmission of non-broadcast services to its subscribers, communicates musical works to the public by telecommunication within the meaning of that section and therefore should be liable to pay royalties to them. Appellant relies on the decision of the Supreme Court of Canada in Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limited et al.[1] [CAPAC] which, it alleges, has already decided the issue in its favour and applies in the present instance.

In order to properly understand the arguments of the parties and the decision of the Supreme Court of Canada, it is necessary to reproduce a certain number of definitions:

Copyright Act

[R.S.C., 1985, c. C-42, ss. 2 (as enacted by S.C. 1988, c. 65, s. 61), 3(1)(f) (as am. idem, s. 62)]

2. ...

“every original literary, dramatic, musical and artistic work” includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works or compositions with or without words, illustrations, sketches and plastic works relative to geography, topography, architecture or science;

...

“musical work” means any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced;

“performance” means any acoustic representation of a work or any visual representation of any dramatic action in a work, including a representation made by means of any mechanical instrument or by radio communication;

...

“telecommunication” means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system;

...

3. (1) For the purposes of this Act, “copyright” means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

...

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work by radio communication,

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication. [As amended in 1988 [S.C. 1988, c. 65, s. 62]]. [My underlining.]

Rome Copyright Convention, 1928

[R.S.C., 1985, c. C-42, Schedule III]

Article 11 (bis)

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their works to the public by radiocommunication.

In the CAPAC case, Pigeon J., writing for the Supreme Court and applying a literal construction to the Copyright Act [R.S.C. 1952, c. 55], came to the following conclusions:

1. In view of the definitions of “musical work” and “performance”, CTV, by transmitting its entertainment programming to its affiliate stations either by shipping a copy of the video tape or by means of cable and microwave facilities, did not communicate “musical work” as defined in the Act, that is to say graphic reproductions of melody and harmony. Rather it communicated not the “work” but a “performance of the work”.[2]

2. Paragraph 3(1)(f) was inspired by paragraph 1 of Article 11 (bis) of the Rome Copyright Convention, 1928.[3]

3. Unlike the Canadian Copyright Act, the Rome Convention does not define “work” and the undefined word, as applied to musical work, is properly taken in the Convention in the primary sense of the composition itself, not its graphic representation as in the Act.[4]

4. The word “communication” does not usually mean a “performance” but in the Convention it is apt to include performances in its meaning along with other modes of representation applicable to other kinds of artistic or literary works that are not “performed”.[5]

5. Paragraph 3(1)(f) does not read “to communicate a performance of such work by radio communication” but to “communicate such work by radio communication” and, in view of the statutory definitions of “musical work” and of “performance”, the insertion of the word “performance” in the enactment is a very substantial departure from the text as written.[6]

6. To give paragraph 3(1)(f) the scope and meaning sought by the appellant, the word “performance” would have to be inserted in paragraph 3(1)(f) and the words “in public” would have to be deleted from section 3 because a performance of musical work is outside the scope of the definition of copyright if it is not in public.[7]

To distinguish the CAPAC case, the respondents now submit that the definition of “musical work” in the Copyright Act not only refers to a graphic representation of melody and harmony, but also to the primary sense of the composition itself. They borrow such an extended meaning from the definition of “every original literary, dramatic, musical and artistic work” found in section 2 and used in section 5 of the Act which refers both to musical work or composition with or without words. They conclude that the words “musical work” and “musical composition” are therefore used and usable interchangeably.

To arrive at such a result, one must for all practical purposes either ignore the contents of the definitions in section 2 of the Act or make what I would call a cross-fertilization of those definitions. In either case, this defies the most basic rules of legislative drafting and interpretation. Definitions are used for convenience and to bring more precision to a legislative text. They are meant to be of assistance to legislative drafting, not to bring confusion to legislative interpretation.[8] The meaning of a definition cannot be changed by ignoring it or part of it or by reading in it words or concepts borrowed from another definition. The contents of definitions are simply not interchangeable and only confusion could result from cross-fertilization.

This in itself should be sufficient to dispose of the respondents’ argument. In addition, however, the definition of the words “every original literary, dramatic, musical and artistic work” makes it plainly obvious that musical work is not meant to refer to or to include “composition with or without words” as the legislator opposes the two notions in that definition. It makes sense for Parliament to do that as section 5, in which the definition of “every original work” is used, broadly protects copyright in every original work. In the case of music, it is appropriate that it extends also to every original composition, not only to music work as narrowly defined in section 2 to mean every combination of melody and harmony printed, reduced to writing or graphically produced.

It is interesting to note that the Copyright Act has been amended at least three times[9] since the Supreme Court rendered its judgment in 1968 and that Parliament has never questioned the interpretation given to “musical works” by the Court. It is all the more interesting and telling as in the first series of amendments of 1988 Parliament saw fit to change, in section 2 of the Act, the definition of the words “architectural work”, “artistic work” and “literary work” and to add the definition of “choreographic work”, but left unchanged that of “musical work”.[10] It had ample opportunity to do so as it revisited the definitions. One can only conclude that Parliament was satisfied with the meaning the Supreme Court had earlier given to “musical work” and which had been in force for twenty years at the time of the amending legislation.

The respondents heavily rely upon an amendment made in 1988 to paragraph 3(1)(f) whereby the words “to the public” were added to the section and the word “telecommunication” replaced “radio communication” and was defined. They contend that this amendment implements the change suggested by the Supreme Court in the CAPAC case and that, as a result, appellant CCTA is liable to pay compensation for the transmission of musical works to its subscribers.

I am willing to accept that the words “to the public” are broader than “in public” and that the insertion of those words may have taken care of the concern of Pigeon J. that performance of musical works under the Act always be in public.[11] The words “to the public” now found in paragraph 3(1)(f) of the Act parallel those found in Article 11(1) (bis) of the Rome Convention and would satisfy the requirement that a performance be in public.

However, the amendment leaves unanswered the crucial point decided by Pigeon J., to wit that paragraph 3(1)(f) covers the communication of musical works to the public, that is to say graphic reproductions of melody and harmony, while what is communicated by appellant CCTA within the terms of the Act as framed is not the “works” but “a performance of the works”,[12] that is to say an acoustic representation of such works. As the definitions of “musical works” and “performance” have remained unchanged, paragraph 3(1)(f) should have been amended to refer to “communication of the performance of musical works” in order to cover the acts of the appellant CCTA. This is clear from this passage of the judgment where referring to paragraph 3(1)(f), Pigeon J. wrote:

However, as previously noted, the material part of the provision does not read “to communicate a performance of such work by radio communication” but “to communicate such work by radio communication”. In view of the statutory definitions of “musical works” and of “performance” the insertion of the word “performance” in the enactment is a very substantial departure from the text as written.[13]

The Supreme Court refused to make the legislative change. This Court is bound by that decision.

I might add that the amendments to paragraph 3(1)(f) on which the respondents rely were enacted to implement the Free Trade Agreement [S.C. 1988, c. 65, Schedule, Part A] with respect to the retransmission of local or distant signals that carry a literary, dramatic, musical or artistic work.[14] This appears clearly from the explanatory notes which accompanied Bill C-2 at the time of the first reading. The definition of “telecommunication” is said to be consequential to the amendments brought to paragraph 3(1)(f) and the latter was introduced to clarify the concept of communicating certain works to the public in order to implement subparagraph 2(a) of Article 2006 of the Free Trade Agreement which deals with the retransmission to the public of program signals not intended in the original transmission for free, over-the-air reception by the general public.[15]

It is significant in my view that the respondents have not been able to point to a single indicia of evidence, be they discussions or debates in the House of Commons, Committees or elsewhere, that would show that the amendments to paragraph 3(1)(f), along with sections 2, 28, 66.52 [as am. by S.C. 1988, c. 65, s. 64], 70.61 [as am. idem, s. 65] and others of the Copyright Act to implement the Free Trade Agreement, were intended to reverse the decision of the Supreme Court of Canada in the CAPAC case. I doubt that Parliament would have dealt with such an important issue in such an indirect and disguised manner.

Whether appellant CCTA performs musical works in public within the meaning of subsection 3(1) of the Copyright Act

The appellant first submits that it does not perform musical works because it does not, as required by the definition of “performance” in section 2 of the Act, broadcast an acoustic representation of a melody or harmony. Under the Act, performance means “any acoustic representation of a work or any visual representation of any dramatic action in a work, including a representation made by means of any mechanical instrument or by radio communication.” What it transmits, appellant says, are electrical signals to individual subscribers’ premises. Such signals are electro-magnetic waves which are completely distinct from acoustic or sound waves and cannot be heard at any time during their distribution to subscribers’ premises. While the acoustic or sound waves are generated by compression of air or some other medium, electro-magnetic waves are generated by a change in an electric or magnetic field. In the words of the appellant, a cable system is simply a medium for the transmission of electrical signals to the subscribers’ premises and their transmission of non-broadcast services by cable television systems to individual subscribers’ premises is through a closed circuit network as opposed to being propagated through space by radio waves.

I do not think this whole case ought to depend on whether it is this kind or that kind of waves which are transmitted to the subscribers. The definition of “performance” in section 2 speaks of any acoustic representation. It does not speak of acoustic waves as opposed to electro-magnetic waves or vice-versa. When a subscriber turns on the television set and listens to the music broadcasted or transmitted by the appellant, it is an acoustic representation of a melody that he or she gets: it is the very performance of a musical work as contemplated by the Act.

Furthermore, the definition of “performance” covers “any” acoustic representation. The fact that it goes on to add that it includes a representation made by means of any mechanical instrument or radio communication does not limit the generality of the word “any” and surely does not limit it to the type of radio communication defined by subsection 35(1) of the Interpretation Act.[16] The word “includes” is generally not limitative and is certainly not apt in this context to limit Parliament’s intention to cover all kinds of acoustic representations. It is merely illustrative of the fact that it applies as well to acoustic representations by technological means. The words “by means of any mechanical instrument or by radio communication” in the definition of performance are nothing more than mere surplusage for greater certainty. As is often the case, however, in legislative drafting, it creates more ambiguity than certainty, especially when the reasons for introducing such precision have long been forgotten. The words “radio communication” appear to have been introduced in 1931 to avoid endless litigation and to ensure that performance would extend to new technological means.[17]

The appellant also contends that, should this Court find that its transmission amounts to a performance, such performance is not a public performance as 97% of all cable television subscribers in Canada are residential subscribers and the transmission is to the private homes of the various subscribers.

I would have thought on a mere common sense basis that when the Prime Minister of Canada addresses the nation, either from his home or his private office, and reaches the citizens in their homes by means of radio and television, he appears in public and performs in public. I would have been content to leave it at that had it not been for early conflicting decisions on this issue.

In the case of Canadian Admiral Corpn. Ltd. v. Rediffusion, Inc.,[18] the Court held that radio or television broadcasts do not amount to performances in public when received in private homes. Cameron J. wrote:

Counsel for the plaintiff, however, submits that even if one such “view” in the privacy of the owner’s home does not constitute a performance in public, that in cases where a large number of people, each having a terminal unit in his home, performs the work by operating the terminal units, that such would constitute a performance in public. He says that from the point of view of the owner, a large number of such performances would constitute an interference with the owner’s right of making copies of his work and might cause him to lose part of his potential market. I am unable to agree with that submission. I cannot see that even a large number of private performances, solely because of their numbers, can become public performances. The character of the individual audiences remains exactly the same; each is private and domestic, and therefore not “in public”. Moreover, in telecasting the films, I think the plaintiff desired to have the telecasts seen by as many people as were within range and possessed the necessary receiving equipment in order that they might be informed of its product; so that I do not think that what was done by the defendant in so far as the private homes and apartments are concerned, interfered with his potential market in any way. It was stated and not denied that the films, including the commercial announcements of the plaintiff, were rediffused as a whole.

I find, therefore, that the performances in the homes and apartments of the subscribers of the defendant company were not performances “in public”.[19]

With respect, I prefer and adopt the contrary views expressed by English,[20] Indian[21] and Australian[22] authorities. They are consistent with our Act. They take a realistic view of the impact and effect of technological developments and they are consistent with the plain and usual meaning of the words “in public”, that is to say openly, without concealment and to the knowledge of all. In Messager v. British Broadcasting Co.,[23] an opera was played for a few friends in a private studio but was transmitted by wireless telephony to the general public. Called upon to decide whether this amounted to a public performance for the purpose of the English Copyright Act, 1911 [1 & 2 Geo. 5, c. 46] whose definition was analogous to ours, McCardie J. wrote:

In my view, however, the defendants, in doing what they did, clearly gave a public performance. Instead of gathering the public into a vast assembly room, they set in motion certain ether waves knowing that millions of receiving instruments in houses and flats were tuned to the waves sent forth, and knowing and intending also that acoustic representation of the opera would thereby be given to an enormous number of listeners. If I did not hold this to be a public performance by the defendants I should fail to recognize the substance and reality of the matter and also the object and intent of the Copyright Act.[24]

In Chappell & Co. Ltd. v. Associated Radio Co. of Australia Ltd., Cussen J. wrote for the Court:

A performance, in our judgment, is no less public because the listeners are unable to communicate with one another or are not assembled within an enclosure or gathered together in some open stadium or park or other public place. Nor can a performance, in our judgment, be deemed private because each listener may be alone in the privacy of his home. Radio-broadcasting is intended and in fact does reach a very much larger number of the public at the moment of the rendition than any other medium of performance.[25]

This is certainly even truer of a transmission by means of television. I am satisfied that the transmission of non-broadcast services by the appellant to its numerous subscribers, when it relates to musical works, is a performance in public within the meaning of subsection 3(1) of the Copyright Act.

Whether the appellant authorizes the performance of musical works

The appellant argues that it does not authorize, sanction or countenance the performance of musical works, but merely supplies the equipment and services which it knows will result in copyright infringement in the course of a use by another person.

I agree with the learned Trial Division Judge that the situation of the appellant in this case is different from that of the CTV network in the CAPAC case.[26] The affiliated stations to whom CTV was transmitting were licensed by CAPAC to perform musical works in public and therefore to make use of the copyrights. In addition, CTV was not transmitting its programs directly to the public. It transmitted them to affiliated stations which broadcasted the musical works to the public. In the case at bar, the appellant transmits directly to the public and in my view the fact that the subscriber has to turn on the television set in no way alters the nature of the transmission. The appellant is more than a mere facilitator of a public performance which violates the Copyright Act, it is the actual performer through an innocent agent or with the assistance of a third party who completes the final and missing link by turning on the television set.

However, if one wants to lay with the subscriber the ultimate responsibility for the materialization of the public performance and therefore the infringement of the copyrights, there is no doubt that, upon a plain or a constructive meaning of the word “authorization”, the appellant authorizes such materialization by its customers.[27] I think the learned Trial Division judge correctly summarized the state of the law with regard to the appellant’s actions when he wrote:

... I believe a cable television system which provides electromagnetic signals to a subscriber, under a contract which clearly contemplates that the sole use of the cable company’s service is to be the production of audible and visual messages from the subscriber’s television set connected to that cable, must be taken to have authorized that ultimate performance.[28]

Conclusion

Having found that the appellant performs or authorizes the performance of musical works in public and, therefore, that there is a statutory basis for the proposed Tariff No. 17, I would dismiss the appeal with costs.

Heald J.A.: I concur.

Desjardins J.A.: I concur.

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