"Making Available" Is Not An Independent Copyright In Canada

• Published date: 21 July 2022
• Subject Matter: Intellectual Property, Technology, Copyright, New Technology
• Law Firm: Bereskin & Parr LLP
• Author: Ms Tamara Winegust and Prudence Etkin

The Supreme Court of Canada, in a decision of Justice Rowe, has affirmed that there is no separate compensable right for "making available" a work on the internet under the Canadian Copyright Act. In Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 (SOCAN v ESA 2022), the Court overturned a decision of the Copyright Board that would have permitted additional royalties to be charged by collective societies when works in their repertoire were made available on the internet'regardless of how (or whether) the works were ultimately accessed. In doing so, the Court confirmed that section 3(1) of the Act creates only three compensable rights'reproduction, performance, or publication'and that a single activity can only engage one of those three interests. It also animated Canada's treaty obligations to protect on-demand streams and authors' rights to control the making available of their works via new technologies in concordance with the Court's general interpretative approach to domestic copyright law.

The Court's decision in SOCAN v ESA 2022 turned on the interpretation of ss. 2.4(1.1). That subsection was introduced to the Canadian Copyright Act in 2012:

For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

For the majority of the Supreme Court, ss. 2.4(1.1) is simply a definition. It clarifies when a work is considered "made available" for the purposes of interpreting the performance right of "communicat[ing] the work ... by telecommunication" under section 3(1)(f)'in this case, that s. 3(1)(f) applies to on-demand streams. Section 2.4(1.1) thus deems the work to be performed as soon as it is made available for streaming'rather than when (or if) it is actually enjoyed by the user. Consequently, the act of "making available" does not create a new revenue stream for owners outside the ultimate right engaged; a work made available for download engages the "reproduction" right; a work made available for streaming engages the "performance" right. Such interpretation was found by the Court to comply with Canada's obligations under Article 8 of the 1996 WIPO Copyright Treaty (Can T.S. 2014 No. 20) which requires member countries to give authors the exclusive right to control the act of making works available.

SOCAN v ESA 2022 comes nearly 10 years to the day of the Court's release of its Copyright Pentalogy. It is consistent with the interpretative approaches to Canadian copyright law outlined in those five decisions and those that followed (including last year's York University v Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32). Together, they affirm that the balance between creators and users sits at the core of Canadian copyright law and that the principle of "technological neutrality" is a key interpretive tool to maintain that balance. When a work is made available via the internet, "what matters is what the user received, not how the user...