In its decision in Williams v Music and Entertainment Rights Licensing Independent Network Ltd, the Federal Court denied a claim that the Applicant's musical content had been used without consent in contravention of the Copyright Act ("Act"). In coming to its decision, the Court affirmed that removing or otherwise making unavailable copyright content does not amount to a contravention under the Act, as well as the notion that copyright law respects the territorial principle.
Background
The Applicant, Randy Bruce Williams, an independent artist, submitted that the Respondents had knowingly violated subsections 13(1) and 14.1 (1) of the Act, had acted in bad faith, had violated the law of estoppel of licenses, and had infringed his copyright. The Respondent, "CD Baby", is an American-based physical and digital distributer of independent music, and the co-Respondents are the Music and Entertainment Rights Licensing Independent Network (MERLIN), and Saavn Media Limited, who operates an online music streaming service under the name JioSaavn in India. CD Baby had been a member of MERLIN since 2016, and had authorized MERLIN to grant a licence to JioSaavn to offer CD Baby's content on its music service.
Since 2009, the Applicant had been signed up for CD Baby's distribution service. For each submission to CD Baby, the Applicant was required to re-accept the terms of the CD Baby Artist Agreement (the "Artist Agreement") and the Digital Distribution Addendum to the Artist Agreement ("Digital Addendum"). As part of this process, the Applicant was required to select a distribution level regarding paid or free distribution of his work. The Applicant did not ever select the option to distribute his work to all, even to places where he would not be paid and only receive exposure, and only selected distribution levels that paid.
The dispute between the parties arose in April of 2022, when JioSaavn notified both CD Baby and MERLIN that there was a complaint from the Applicant claiming MERLIN did not have the right to distribute his content, and in particular, one of his works called "My I Love You" to JioSaavn.
Court Analysis
In its analysis, the Court found that the only potential issue between the parties pertained to the scope and validity of the Artist Agreement. The Court emphasized that under subsection 27(1) of the Act, it is infringement of copyright for a person who is not the copyright owner to engage in activities that only the copyright owner has the right to do, absent consent from the owner.
Firstly, the Applicant argued that CD Baby had repudiated the Artist Agreement by ceasing distribution of the Applicant's work, "My I Love You". The Court found that the Artist Agreement was not and had never been repudiated or terminated by either party to it. This was because Section 3 of the Artist Agreement provides that the agreement will continue in effect "unless and until terminated by either you or us, upon 24 hours written notice," and that mere removal of an artist's content from its website or licensee's website services does not constitute termination of the Artist Agreement. Thus, since the Applicant did not submit the required termination notice, he did not terminate the Artist Agreement. Once the Court had determined that the Artist Agreement remained in effect, it then considered whether the Artist Agreement covered the Respondent's activities.
The Court agreed with the Respondents that through the Artist Agreement, the Applicant had granted CD Baby and its licensees, including the co-Respondents, the non-exclusive right to distribute the Applicant's content, and that this included CD Baby's right to authorize MERLIN to grant JioSaavn a license to exploit the Applicant's content on its streaming platforms. The Court found that in signing the Artist Agreement, the Applicant had provided CD Baby with the authorization to act as his agent and license his content to online music services such as JioSaavn. Further, the Court re-emphasized that removing or otherwise making unavailable copyright content does not amount to a contravention under the Act.
The Court stated that it would have agreed with the Applicant's argument that if CD Baby distributed or allowed others to distribute his content for free, contrary to the distribution levels that he authorized, this would constitute acting without the Applicant's consent and thus be considered infringement under the Act. However, the Court found that the Applicant had failed to meet the evidentiary burden of establishing copyright infringement because he had not successfully proved on a balance of probabilities that he was not paid for the distribution of his content per the Artist Agreement. The Applicant had utilised Digital Distribution Sales reports to show that there were a significant number of streams with no payout. The Respondents, however, submitted that some of these streams were considered "artificial streams", and also established that JioSaavn did pay for some streams of the same work. Thus, the Court agreed with the Respondent's submission that CD Baby had acted within the scope of the Artist Agreement, because they licensed the Applicant's work to services that pay, regardless of how much they pay.
Finally and most significantly, the Court cited Society of Composers, Authors & Music Publishers of Canada v Canadian Assn. of Internet Providers, 2004 SCC 45 to affirm that copyright law respects the territorial principle, and thus, JioSaavn cannot have infringed the Applicant's copyright under the Act because it did not offer or provide streams of his content into Canada.
Conclusion
The Court ultimately concluded that the application would be dismissed in its entirety because there was no infringement of copyright under the Act.
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