Principles of Copyright Law – Cases and Materials

Implications of this decision

It has been suggested that the foregoing conclusions could have significant consequences for

other information technologies – including facsimile services, video conferencing and data

transmission. In particular, it has been argued that telecommunications carriers and perhaps even

internet service providers could potentially become liable as a result of internet users’

downloading works which are protected by copyright. ... [T]he Parliament may need to consider

these questions – and others arising – and to formulate a legislative response to them. ...

JUSTICES DAWSON AND GAUDRON:

Lying behind the concept of the copyright owner’s public is recognition of the fact that where a

work is performed in a commercial setting, the occasion is unlikely to be private or domestic and

the audience is more appropriately to be seen as a section of the public. It is in a commercial

setting that an unauthorised performance will ordinarily be to the financial disadvantage of the

owner’s copyright in a work, because it is in such a setting that the owner is entitled to expect

payment for the work’s authorised performance. In this case it is not so much the preparedness

of the audience of music on hold to pay to hear the works, were it not for their unauthorised

performance, that is significant. That simple analysis belongs to an age where communications

were less technologically advanced, and business and marketing techniques were less developed.

Rather, it is the preparedness of those who wish the music on hold to be played to bear the cost

of the arrangement which provides the key, for it reveals the commercial character of the

broadcast and the commercial deprivation suffered by the copyright owner. Callers on hold

constitute the copyright owner’s public, not because they themselves would be prepared to pay

to hear the music, but because others are prepared to bear the cost of them having that facility.

For the performance of the music to that audience, the copyright owner would expect to receive

payment, even if not from the members of the audience. For these reasons, we conclude that

when the works were transmitted to persons using mobile telephones when placed on hold ...,

they were broadcast ...

• Uplinking or downlinking a work via a satellite for distribution
  to subscribers may be a public performance or public
  communication

National Football League v. Primetime 24 Joint Venture, 211 F.3d 10 (U.S.:

Court of Appeals, 2ndCir., 2000)

[The plaintiff owned the copyright in simultaneous videotape recordings of its

weekly football games. The defendant uplinked U.S. broadcasts of the games

to its satellite for transmission to and viewing by subscribers with satellite dishes

in Canada. The plaintiff claimed that the uplinking infringed its public

performance right.]

JUDGE VAN GRAAFEILAND for the Court:

PrimeTime argues that capturing or uplinking copyrighted material and transmitting it to a

satellite does not constitute a public display or performance of that material. PrimeTime argues

that any public performance or display occurs during the downlink from the satellite to the home

subscriber in Canada, which is in a foreign country where the Copyright Act does not apply. ...

In [an earlier case, a U.S. court] considered whether an intermediate carrier had publicly

(^102) performed copyrighted television signals by capturing broadcast signals, altering them and

II. RIGHTS