Case information
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33921
Entertainment Software Association, et al. v. Society of Composers, Authors and Music Publishers of Canada
(Federal) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2012-07-18 | Appeal closed | |
| 2012-07-13 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2012-07-13 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2012-07-12 |
Judgment on the appeal rendered, CJ LeB De F Abe Ro Cro Mo Ka, The appeal from the judgment of the Federal Court of Appeal, Number A-521-07, 2010 FCA 221, dated September 2, 2010, heard on December 6, 2011, is allowed with costs. LeBel, Fish, Rothstein and Cromwell JJ. are dissenting. Allowed, with costs |
|
| 2011-12-29 | Transcript received, (137 pages) | |
| 2011-12-06 | Acknowledgement and consent for video taping of proceedings, all parties consented | |
| 2011-12-06 | Judgment reserved OR rendered with reasons to follow | |
| 2011-12-06 |
Hearing of the appeal, 2011-12-06, CJ LeB De F Abe Ro Cro Mo Ka Judgment reserved |
|
| 2011-12-06 | Respondent's condensed book, Joint with 33922 - filed in Court | Society of Composers, Authors and Music Publishers of Canada |
| 2011-12-06 | Appellant's condensed book, Rec'd in Court | Entertainment Software Association |
| 2011-11-22 | Notice of appearance, David Fewer and Jeremy de Beer will be appearing | Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic |
| 2011-11-22 | Notice of appearance, Casey M. Chisick, Timothy Pinos and Jason Beitchman will be appearing | CMRRA/SODRAC Inc. |
| 2011-11-22 | Notice of appearance, Gilles Daigle, Lynne Watt, Paul Spurgeon and Henry Brown, Q.C. will be appearing | Society of Composers, Authors and Music Publishers of Canada |
| 2011-11-22 | Correspondence received from, McCarthy Tétrault by fax, re.: request for 2 reserved seats at the hearing | Entertainment Software Association |
| 2011-11-22 | Correspondence received from, Gowling by fax, re.: request for 2 reserved seats at the hearing (joint with 33922) | Society of Composers, Authors and Music Publishers of Canada |
| 2011-11-22 | Correspondence received from, Cassels Brock by fax, re.: request for 1 reserved seat at the hearing (joint with 33922) | CMRRA/SODRAC Inc. |
| 2011-11-22 |
Order by, De, (joint with 33922) FURTHER TO THE ORDER dated September 28, 2011, granting leave to intervene to the CMRRA/SODRAC Inc., the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and the Cineplex Entertainment LP in the appeal of Entertainment Software Association, et al. (33921); AND FURTHER TO THE ORDER dated September 28, 2011, granting leave to intervene to the CMRRA/SODRAC Inc., the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Cineplex Entertainment LP and Apple Canada Inc. and Apple Inc. in the appeal of Rogers Communications Inc., et al. (33922); IT IS HEREBY FURTHER ORDERED THAT the interveners are denied permission to present oral argument at the hearing of the appeals Dismissed |
|
| 2011-11-21 | Notice of appearance, Barry Sookman, Steven Mason and Daniel Glover will be appearing | Entertainment Software Association |
| 2011-11-17 | Intervener's book of authorities, Completed on: 2011-11-17 | Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic |
| 2011-11-17 | Intervener's factum, (Joint with 33922), Completed on: 2011-11-17 | Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic |
| 2011-11-17 | Intervener's book of authorities, (joint with 33922), Completed on: 2011-11-17 | CMRRA/SODRAC Inc. |
| 2011-11-17 | Intervener's factum, (joint with 33922), Completed on: 2011-11-17 | CMRRA/SODRAC Inc. |
| 2011-11-17 | Intervener's book of authorities, Joint with 33922, Completed on: 2011-11-17 | Cineplex Entertainment LP |
| 2011-11-17 | Intervener's factum, Joint with 33922, Completed on: 2011-11-17 | Cineplex Entertainment LP |
| 2011-11-02 | Correspondence received from, Samantha Trottola dated November 2, 2011. Re: Change of address for Gilbert's LLP | Cineplex Entertainment LP |
| 2011-09-28 | Order on motion for leave to intervene, (BY DESCHAMPS J.) | |
| 2011-09-28 |
Decision on the motion for leave to intervene, (joint with 33922), De, UPON APPLICATIONS by CMRRA/SODRAC Inc., Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and Cineplex Entertainment LP for leave to intervene in the appeal of Entertainment Software Association, et al. (33921); AND UPON APPLICATIONS by CMRRA/SODRAC Inc., Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Cineplex Entertainment LP and Apple Canada Inc. and Apple Inc. for leave to intervene in the appeal of Rogers Communications Inc., et al. (33922); AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene of CMRRA/SODRAC Inc. is granted and the said intervener shall be entitled to serve and file a single factum for both appeals not to exceed 10 pages in length on or before November 17, 2011. The motion for leave to intervene of Cineplex Entertainment LP is granted and the said intervener shall be entitled to serve and file a single factum for both appeals not to exceed 10 pages in length on or before November 17, 2011. The motion for leave to intervene of Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic is granted and the said intervener shall be entitled to serve and file a single factum for both appeals not to exceed 10 pages in length on or before November 17, 2011. The motion for leave to intervene of Apple Canada Inc. and Apple Inc. is granted and the said intervener shall be entitled to serve and file a factum not to exceed 10 pages in length in the appeal 33922 on or before November 17, 2011. The requests to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the interveners. The interveners shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellants and respondents any additional disbursements occasioned to the appellants and respondents by their interventions Granted |
|
| 2011-09-28 | Submission of motion for leave to intervene, De | |
| 2011-09-20 | Appeal perfected for hearing | |
| 2011-09-09 | Respondent's book of authorities, Completed on: 2011-09-09 | Society of Composers, Authors and Music Publishers of Canada |
| 2011-09-09 | Respondent's record, Completed on: 2011-09-09 | Society of Composers, Authors and Music Publishers of Canada |
| 2011-09-09 | Respondent's factum, Word Version rec'd Oct. 6/11, Completed on: 2011-10-11 | Society of Composers, Authors and Music Publishers of Canada |
| 2011-08-31 | Reply to the motion for leave to intervene, (Letter Form), from David Fewer dated Aug. 30/11, Completed on: 2011-08-31 | Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic |
| 2011-08-29 | Reply to the motion for leave to intervene, (Letter Form), from Casey M. Chisick dated Aug. 29/11, Completed on: 2011-08-29 | CMRRA/SODRAC Inc. |
| 2011-08-29 | Notice of hearing sent to parties | |
| 2011-08-23 | Reply to the motion for leave to intervene, (Letter Form), from Tim Gilbert dated Aug. 23/11, Completed on: 2011-08-23 | Cineplex Entertainment LP |
| 2011-08-22 | Response to the motion for leave to intervene, (Letter Form), from Barry B. Sookman dated Aug. 22/11 (by all interveners), Completed on: 2011-08-22 | Entertainment Software Association |
| 2011-08-22 | Response to the motion for leave to intervene, (Letter Form), from Matthew Estabrooks dated Aug. 22/11 (by all interveners) (joint with 33922), Completed on: 2011-08-22 | Society of Composers, Authors and Music Publishers of Canada |
| 2011-08-16 | Supplemental document, (Authorities in support of Motion for leave to intervene), Completed on: 2011-08-16 | Cineplex Entertainment LP |
| 2011-08-16 | Motion for leave to intervene, (Joint with 33922), Completed on: 2011-08-16 | Cineplex Entertainment LP |
| 2011-08-12 | Supplemental document, book of authorities in support of leave to intervene, Completed on: 2011-08-12 | CMRRA/SODRAC Inc. |
| 2011-08-12 | Motion for leave to intervene, (book form), Completed on: 2011-08-12 | CMRRA/SODRAC Inc. |
| 2011-08-12 | Motion for leave to intervene, (book form), Completed on: 2011-08-12 | Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic |
| 2011-07-22 |
Appeal hearing scheduled, 2011-12-07, For webcast purposes only - (start time 9:00am) Judgment reserved |
|
| 2011-07-22 |
Appeal hearing scheduled, 2011-12-06, (start time 9:00am) Judgment reserved |
|
| 2011-07-15 | Appellant's record, (2 volumes), Completed on: 2011-07-15 | Entertainment Software Association |
| 2011-07-15 | Appellant's book of authorities, (3 volumes), Completed on: 2011-07-15 | Entertainment Software Association |
| 2011-07-15 | Appellant's factum, Cd to come (rec'd July 22/11), Completed on: 2011-08-02 | Entertainment Software Association |
| 2011-05-06 | Correspondence received from, Barry B. Sookman dated May 6/11 | Entertainment Software Association |
| 2011-05-06 | Notice of change of counsel, from Barbara McIsaac of Borden Ladner Gervais LLP to Barry Sookman of McCarthy Tétrault LLP | Entertainment Software Association |
| 2011-05-02 | Correspondence received, from Casey M. Chisick dated May 2/11 re CMRRA/SODRAC Inc. is an intervener (joint with 33922) | |
| 2011-04-26 | Notice of appeal, Completed on: 2011-04-26 | Entertainment Software Association |
| 2011-04-20 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2011-03-25 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2011-03-25 | Judgment on leave sent to the parties | |
| 2011-03-24 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Federal Court of Appeal, Number A-521-07, 2010 FCA 221, dated September 2, 2010, is granted with costs in the cause. The appeal is to be heard with the appeals Society of Composers, Authors and Music Publishers of Canada v. Bell Canada et al. (33800) and Rogers Communications Inc., Rogers Wireless Partnership and Shaw Cablesystems G.P. v. Society of Composers, Authors and Music Publishers of Canada (33922). Granted, with costs in the cause |
|
| 2011-01-31 | All materials on application for leave submitted to the Judges, LeB De Cha | |
| 2010-12-13 | Applicant's reply to respondent's argument, Completed on: 2010-12-23 | Entertainment Software Association |
| 2010-12-01 | Respondent's response on the application for leave to appeal, Completed on: 2010-12-01 | Society of Composers, Authors and Music Publishers of Canada |
| 2010-11-03 | Correspondence received from, H. Rupani, dated Nov. 3, 2010, by fax re: nothing confidential in leave appl. | Entertainment Software Association |
| 2010-11-02 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2010-11-01 | Book of authorities | Entertainment Software Association |
| 2010-11-01 | Application for leave to appeal, Completed on: 2010-11-01 | Entertainment Software Association |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Entertainment Software Association | Appellant | Active |
| Entertainment Software Association of Canada | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Society of Composers, Authors and Music Publishers of Canada | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| CMRRA/SODRAC Inc. | Intervener | Active |
| Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic | Intervener | Active |
| Cineplex Entertainment LP | Intervener | Active |
Counsel
Party: Entertainment Software Association
Counsel
Steven G. Mason
Daniel Glover
P.O. Box 48, Suite 4700, T-D Bank Tower
Toronto-Dominion Centre
Toronto, Ontario
M5K 1E6
Telephone: (416) 601-7949
FAX: (416) 868-0673
Agent
1111 Prince of Wales Drive
Suite 401
Ottawa, Ontario
K2C 3T2
Telephone: (613) 569-8558
FAX: (613) 569-8668
Email: cbaxter@cwcb-law.com
Party: Entertainment Software Association of Canada
Counsel
Steven G. Mason
Daniel Glover
P.O. Box 48, Suite 4700, T-D Bank Tower
Toronto-Dominion Centre
Toronto, Ontario
M5K 1E6
Telephone: (416) 601-7949
FAX: (416) 868-0673
Agent
1111 Prince of Wales Drive
Suite 401
Ottawa, Ontario
K2C 3T2
Telephone: (613) 569-8558
FAX: (613) 569-8668
Email: cbaxter@cwcb-law.com
Party: Society of Composers, Authors and Music Publishers of Canada
Counsel
D. Lynne Watt
Paul Spurgeon
Henry Brown, Q.C.
2600 - 160 Elgin Street
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: gilles.daigle@gowlingwlg.com
Party: CMRRA/SODRAC Inc.
Counsel
Timothy Pinos
Jason Beitchman
Scotia Plaza
2100 - 40 King Street West
Toronto, Ontario
M5H 3C2
Telephone: (416) 869-5403
FAX: (416) 644-9326
Email: cchisick@casselsbrock.com
Party: Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
Counsel
Jeremy de Beer
Centre for Law, Technology and innovation (CIPPIC)
57 Louis Pasteur St.
Ottawa, Ontario
K1N 6N5
Telephone: (613) 562-5800 Ext: 2558
FAX: (613) 562-5417
Party: Cineplex Entertainment LP
Counsel
Sana Halwani
Sundeep Chauhan
77 King Street West
Suite 2010, P.O. Box 301
Toronto, Ontario
M5K 1K2
Telephone: (416) 703-1100
FAX: (416) 703-7422
Email: tim@gilbertslaw.ca
Agent
1111 Prince of Wales Drive
Suite 401
Ottawa, Ontario
K2C 3T2
Telephone: (613) 569-8558
FAX: (613) 569-8668
Email: cbaxter@cwcb-law.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Intellectual Property – Copyright – Whether a download of a video game that includes music is a communication of that music to the public by telecommunication within the meaning of para. 3(1)(f) of the Copyright Act, R.S.C. 1985, c. C-42 – Whether standard of reasonableness or standard of correctness applies on judicial review of Copyright Board’s decision that a download of a video game that includes music is a communication of that music to the public by telecommunication.
The applicants represent publishers, developers and distributors of interactive entertainment software products (primarily video and computer games). Their members collectively generate approximately 90% of North American interactive software product sales. On-line downloads of games generate approximately 5% of sales of interactive entertainment software products. On October 18, 2007, the Copyright Board released a decision stating the royalties to be collected for the communication to the public by telecommunication, in Canada, of musical or dramatic-musical works for the years 1996 to 2006: SOCAN Tariff 22.A (Internet Online Music Services).
Lower court rulings
Copyright Board Canada
Decision certifying SOCAN Tariff 22.A (Internet-Online Music Services)
Federal Court of Appeal
A-521-07, 2010 FCA 221
Application for judicial review is dismissed.
Memorandums of argument on application for leave to appeal
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