Federal Court of Appeal Upholds Ringtone Decision |
| Print | |
|
Thursday January 10, 2008
|
|
|
The Federal Court of Canada has issued its decision The potentially more important line of reasoning involves whether the transmission of the ringtone is a "communication to the public." The wireless providers argued that: "when a wireless carrier offers to all of its customers an opportunity to purchase ringtones, the fact that the customers respond to the offer one by one, and receive copies of the ringtones by wireless transmission one by one, necessariliy means that each transmission is a private communication, and therefore there is no communication of [it] to the public. Put another way. . . a series of identical communications, no matter how numerous, cannot be a communication to the public if each communication is initiated by the recipient's request." The court rejected this argument as well, concluding that: "the transmission of a television program is a performance in public, even if no one is watching it or everyone who is watching it is doing so in private, because it is made available to a sufficiently large and diverse group of people. Similarly, in this case all of the customers of a wireless carrier (that is, all members of the relevant segment of the public) have access to all of the ringtones offered by that wireless carrier. The fact that the ringtones are offered to the public, or to a significant segment of the public, supplies the requisite degree of "openness." This could prove important for two reasons. First, there is an obvious peer-to-peer parallel. While some have tried to argue that peer-to-peer file sharing constitute private transmissions, this reasoning suggests that a series of one-to-one transmissions can still be a communication to the public where the content is made available to all. This does not affect the download side of P2P, but it reinforces the potential infringement for making content available (uploading) on P2P networks. Second, one of the key elements in a future copyright bill designed to bring Canada into compliance with the WIPO Internet Treaties is the "making available" right. There have been some arguments that Canada already complies with this element of the treaty and that no new provisions are needed. This decision moves us a further step down that road as the Court's analysis looks an awful lot like a making available right. Comments (1)
 Write comment
Thursday January 10, 2008 Related Items:
|
Subscribe to this comment's feed
