SOCAN v. CAIP
| Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers | |
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| Hearing: December 3, 2003 Judgment: June 30, 2004 |
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| Full case name | citations=[2004] 2 S.C.R. 427, 2004 SCC 45, 240 D.L.R. (4th) 193, 32 C.P.R. (4th) 1 |
| Citations | {{{citations}}} |
| Prior history | Judgment for SOCAN in the Federal Court of Appeal. |
| Court Membership | |
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Chief Justice: Beverley McLachlin Puisne Justices: Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie, Louise Arbour, Louis LeBel, Marie Deschamps, Morris Fish |
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| Reasons given | |
| Majority | Binnie J., joined by McLachlin, Iacobucci, Major, Bastarache, Arbour, Deschamps and Fish J. |
| Dissent | LeBel J. |
Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers 2 S.C.R. 427, 2004 SCC 45 - also known as the Tariff 22 case - is a leading decision by the Supreme Court of Canada on ISP liability for copyright infringement. The Court found that there is no liability for information found in caches. An ISP's liability depends on whether it limits itself to "a conduit" or a content-neutral function and is not dependent on where the ISP is located.
In 1995 the Society of Composers, Authors, and Music Publishers of Canada ("SOCAN") applied for a royalty tariff to the Copyright Board of Canada that would allow them to collect royalties for copyrighted materials transferred over the internet. In rebuttal, the Canadian Association of Internet Providers (CAIP) claimed that they served only as intermediaries and could not be held liable.
In 2002, the Federal Court of Appeal held that an ISP could rely on the "intermediary exception" found in section 2.4(1)(b) that absolved carriers who only pass information through their system from liability. However, this exception did not apply for caching of information as doing so was considered more than just relaying information. Thus an ISP who refuses to remove copyrighted material from its servers after given reasonable opportunity to do so could be held liable. Lastly, the Court of Appeal found that the tariff should not be limited to material originating from Canada alone.
The Court's opinion was written by Binnie J. with McLachlin C.J., Iacobucci, Major, Bastarache, Arbour, Deschamps and Fish JJ. concurring. A minority opinion was given by LeBel J.
To begin, Binnie notes the huge capacity of the internet to disseminate knowledge and it should be encouraged; however, a balance is difficult to find.
Binnie first examined the applicability of the Copyright Act. It depends on whether there is a "real and substantial connection" between Canada and the transmission source, Binnie claims. This would mean that the Act applies to communications received in or originating from Canada.
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