Expressed in s. 3(1) of the Copyright Act as the sole right “to perform the work or any substantial part thereof in public”.
Performance
s. 2 of the Copyright Act, “performance” means any acoustic or visual representation of a work, performer’s performance, sound recording or communication signal, including a representation made by means of any mechanical instrument, radio receiving set or television receiving set.
WTO Agreement Implementation Act 1994
NAFTA Implementation Act 1993
Copyright Amendment Act 1993
Canadian Cable Television Association v. Copyright Board (Canada)
Immediately prior to this case the definition read at the end: “any mechanical instrument or by radio communication”.
Primarily concerned with s. 3(1)(f), the right to communicate a work to the public by telecommunication” and whether this includes the performance of musical works in transmissions to cable subscribers.
At this time, the expression musical works was still defined as the written score.
Musical work means any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced.
Issue required the court to consider the meaning of performance and the meaning of public.
The court found the communication to be a performance and to be in public.
Definition includes any acoustic representation.
“Includes” is generally not limitative, and not apt in this context to limit Parliament’s intention to cover all kinds of acoustic representations.
“In Public”
Jennings v. Stephens
Dramatic society gave an unlicensed performance of a dramatic work at a meeting of a women’s institute.
No persons, aside from members, were allowed to be present at the meetings because the institute considered that the presence of non-members would change it from private to “public”.
Owner of copyright has the sole right to do which is by the Act conferred on the owner of the copyright.
The expression “in public” must be considered in relation to the owner of the copyright.
If the audience considered in relation to the owner of the copyright may properly be described as the owner’s “public” then it would be infringement for anyone aside from the copyright holder to perform.
Regardless of the fact that the performers were a part of the same institute as the viewers, not the same as presenting a play in front of family members.
They are members of the institute for things such as this.
Compare it to taking a lecture from a speaker, and performing without his permission.
Francis, Day & Hunter Ltd. v. Twentieth Century Fox Corp. Ltd.
Plaintiff held the copyright to a song composed in 1892 TMWBTBAC, same titled movie came out in Canada in 1935.
Entirely different plot.
Cannot be an infringement of performing right in musical composition unless there has been a public performance of the musical composition by the defendant.
To say that the mere showing of the title of the song on the screen was a public performance of a musical composition is abhorrent to common sense.
Musical composition is performed by audible reproduction, by the voice or by musical instruments or by mechanical methods of reproduction.
Canadian Admiral Corporation, Ltd. v. Rediffusion, Inc.
Plaintiff had the exclusive right to certain telecasts of games.
Defendant maintained an antenna in Montreal and would intercept the broadcasts and further transmit them to units in the homes of their subscribers, etc.
The character of the individual audiences remains exactly the same, each is private and domestic.
Plaintiff wanted as many people as possible to see the telecast, so their goal hasn’t really been hurt by the defendant.
The advertisements and everything were rediffused as a whole.
Performances in the homes and apartments of the subscribers of the defendant company were not performances “in public”.
Much different in the defendant’s showroom, where they would also show the footage.
Showroom was there to demonstrate and sell its services, open to the public.
Nothing of a domestic or quasi-domestic nature and constituted a performance in public.
Canadian Cable Television Association v. Copyright Board (Canada)
Already found to be a performance, now considering if it is in public.
“Performance is no less in 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 etc”
Also not private just because people are in the privacy of their homes when viewing.
Authorisation
s. 3(1) concludes with the right of the copyright owner to authorize any of the preceding rights in s. 3(1).
University of New South Wales v. Moorhouse
Plaintiff and respondent, Moorhouse, was the author and art owner of ashore stories in magazines and later in a book.
Defendant and appellate had made 2 photocopies of about 10 pages of a book.
Deals with fair dealing under s 40 and reasonable portion under s 49.
Seemed as though the university may have authorized the use of the photocopiers for illegal means, however a copy of the act was available and there was a notice on the photocopier.
Found that the university fig not give adequate notice on the machines for the purpose of informing users that the machines were not to bemused in a manner that would constitute an infringement of copyright.
Copies were infringing.
CBS Songs Ltd. v. Amstrad Consumer Electronics Plc.
Plaintiffs suing the defendant for making recording equipment that would allow members of the public to copy records in which copyright subsists and that the defendant must not advertise their equipment in such a way so as to encourage copying.
Pirates don’t use the type of technology that the defendant is selling.
Defendant’s machine was advertised to be able to copy cassettes, did have an asterisk saying that copying of some material would need permission under the Copyright Act.
BPI submitted that defendant authorised infringement, and would be a joint infringer together with anyone who uses a machine for the purpose of making an infringing copy.
No manufacturer or machine confers on the purchaser authority to copy unlawfully.
By selling the recorder it may facilitate copying, but does not authorise it.
Already said it shouldn’t be used illegally, but did advertise aspects which could be intriguing for illegal purpose (double-tape, twice the speed).
If they didn’t advertise this, other manufacturers would.
Defendant conferred the power to copy, but did not grant or purport to grant the right to copy.
Joint infringes are two or more persons who act in concert with one another pursuant to a common design in the infringement.
Muzak Corporation v. Composers, Authors & Publishers Association of Canada Ltd.
Respondent has the sole right to perform the works in Canada.
Alleges infringement on the part of the appellant because, it claims, the appellant has authorized the performance of the musical works under the contract with the defendant broadcasting company.
No infringement found.
CAPAC was the owner of the sole right to perform certain musical works in public throughout Canada.
CAPAC submitted that Muzak had authorised the performance of the works by leasing records containing the musical works in question to the Canadian ABC franchise (broadcasting corp.).
These recordist contained the musical pieces in question, which recordings were subsequently broadcast in public by ABC.
SCC rejected the authorisation connection.
Mere fact of supplying the means which permitted a person to commit an infringement did not amount to authorisation.
Town owned a cultural centre that performed dramatic works.
Second defendant was a non-profit that rented the cultural centre.
Proceedings had been brought against the producer, but his company went bankrupt.
Plaintiff found out about the play, tried to negotiate terms with the producer, but they were not complied with.
Plaintiffs asserted that the defendant had authorised the play to go on.
Authorise to mean “sanction, approve and countenance”.
Atkin LJ “authorise means to grant or report to grant to a third person the right to do the act complained of, whether the intention is that the grantee shall do the act on his own account, or only on account of the grantor”
A defendant who simply supplies the means which make the infringement possible cannot be held liable for authorizing the infringement if he had no control offer the means in question.
A lot to do with the element of control.
Held that the defendants have no liability.
Did not authorise the performances of the play.
The producer alone had control over the choice of play.
Situations that might constitute an infringement by authorisation can include the following:
Situations similar to contributory infringement in the US.
There must be some link, such as the ability to control the use of copyrighted works by others.
Knowledge of the infringement occurring as a result of the aid provided.
No need for the authoriser to benefit from the infringement.
Situations where the authoriser can be said to sanction, approve, and countenance the infringement by granting or purporting to grant to a third person the right to do the act complained of.
Essence of this test is that the authorisation can come only from somebody having or purporting to have authority to give the authorisation.
This test precludes any authorisation by merely assisting, encouraging, or facilitating.
Situations in between the above two.
Merely providing the means of infringement is not in itself sufficient to constitute “authorisation”.
A seller can presumptively assume that lawful use will be made of any equipment.
