COPYRIGHT |
FWS Joint Sports Claimants Inc. v. Boarder Broadcasting Inc.
A-209-00
2001 FCA 336, Evans J.A.
6/11/01
9 pp.
Royalties--Application for judicial review of Copyright Board decision allocating royalties payable to FWS Joint Sports Claimants Inc., collective society representing NFL, CFL, NHL, NBA, for retransmission of distant broadcast signals, typically by cable television companies--FWS arguing basis on which Board allocating royalties (cumulative viewing approach) significantly underestimating value of sports to cable companies' ability to attract and retain subscribers--Application dismissed--As to "use" issue, Board did not make error of law when held appropriate to determine how to allocate $50 million of royalty payable in each of years 1998-2000 by considering length of time subscribers spent watching various categories of programme since subscribers ultimate consumers of programmes, their viewing preferences, as measured by number of hours spent watching programmes belonging to various collectives, appropriate criterion on value of those programmes to cable companies--Board did not depart from its 1990 position, namely that ultimate basis of allocation of royalties value of programmes to cable companies--Board herein simply made it clear that in absence of free market in retransmission rights, number of hours subscribers spent watching particular kinds of programming most reliable criterion for determining their value to cable companies' ability to attract and retain customers--As to "fettering" issue, FWS argued that, by setting its face against any evidence of value of programming to cable companies, other than viewer numbers, Board had unlawfully fettered its discretion--Board did not reject FWS' evidence, but its approach to ascertaining value to cable companies of programmes owned by particular collectives--This kind of determination falls squarely within domain of Board as specialist tribunal entrusted with broad statutory discretion to set royalties payable by cable companies for retransmitting copyright material and then to allocate them among various copyright owners--Decision, involving exercise of broad statutory discretion, policy elements, use of economic and statistical data, understanding of cable industry and related technology, reviewable only for patent unreasonableness--Board cannot be said to have made patently unreasonable decision when it retained cumulative viewing criterion for determining value of sports programmes to cable companies, criterion it had used twice before, relatively simple to administer, and more hard-edged than multi-faceted and less reliable approach for determining value advocated by FWS--This does not mean that open to Board in future royalty allocation proceedings categorically to refuse to look at any evidence of value to cable companies other than that of viewer numbers--Board herein, as in FWS Joint Sports Claimants v. Canada (Copyright Board), [1992] 1 F.C. 487 (C.A.), did not ignore evidence, it just did not accept it--Board did not fail to give adequate reasons for rejecting evidence, nor made findings of fact in perverse or arbitrary manner, or without regard to material before it--Apparent from discussions between Board members and witnesses that Board came to grips with their evidence.