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LEGAL REPORT: INTELLECTUAL PROPERTY Barry Sookman, co-chairman of Mc- Carthy Tétrault LLP's technology law group, who represented the intervening Canadian Recording Industry Associa- tion. "The court basically said that de- vices aren't covered, whether the device is a cassette player or an iPod. A device is different from the carrier." Bourne says, despite the Apple ruling, "Those who look past that will recognize there's currently some uncertainty, be- cause at least some think that, one way or another, recording companies are going to try and extract their pound of flesh from the downloading phenomenon. The fact that it didn't work by imposing a levy on MP3 players suggest that per- haps they'll look for another mechanism of doing so." Bourne says there's been some indi- cation that the music industry, at least in the United States, is recognizing that downloading and digital copying are here to stay. "They're trying to jump on the bandwagon and work with content providers on digital media. This is a phe- nomenon that's not going to stop." At around the same time as the MP3 decisions, the Federal Court of Appeal made a decision in Canadian Wireless Telecommunications Association v. Soci- ety of Composers, Authors and Music Pub- lishers of Canada. In this case, a different collective, SOCAN, wanted to collect royalties on the wireless transmission of ring tones from wireless carriers to cellphones. On Aug. 18, 2006, the Copy- right Board had certified a Statement of Royalties entitled "SOCAN Tariff No. 24 – Ringtones (2003-2005)" to allow for such a collection. The Canadian Wire- less Telecommunications Association (CWTA) and two of its members, Bell Mobility Inc. and Telus Communica- tions Inc., sought judicial review of that decision on the basis that transmission of a musical ring tone to a cellphone, as set out in Tariff 24, was not a "communi- cation" falling within paragraph 3(1)(f) of the Copyright Act. Gowlings' Daigle, who represented SOCAN in the ring tone case, says the society licenses and collects fees for the use of music in public performances or communications to the public through telecommunications. "It's a complicated way of talking about broadcasting activities and internet transmis- sions and things of that sort, as opposed to a concert at a venue where you have a public per- formance of musical works," he says. Ring tones, essentially digital music files that can be used on mobile phones to indicate incoming calls, constitute a new use of music and, from SOCAN's point of view, require new com- pensation. After some public discus- sion, the Copyright Board set the tariff at six per cent. The CWTA wasn't appealing on the issue of the percentage amount but BereskinParr_4.625x7.375 2/6/07 4:50 PM Page 1 rather took the position that the provision of ring tones was not an act that infringed copyright, because the transmission of a ring tone to a cellphone isn't public or CONFIDENCE & CARE Discover why many of the world's most original thinkers rely on Bereskin & Parr for IP guidance. One of Canada's leading intellectual property law firms, we combine depth of expertise with a dedication to tailored service that builds lasting trust. www.bereskinparr.com www. C ANADIAN Law ye rmag.com M ARCH 2008 49