When Canada signed the WIPO Copyright Treaty in 1997 it required Canada to give copyright owners the exclusive right to make their works available to the public in such a way that members of the public may access these works from a place and at a time individually chosen by them.
This was implemented in 2014 by adding Section 2.4(1.1) to the Copyright Act. Section 2.4 (1.1) modified the definition of sSection 3(1)(f) by holding that a work is communicated to the public as soon as it is made available 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”. This is known as the ‘making available’ right.
The Supreme Court had the opportunity to consider the ‘making available’ right in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association[1] [ESA 2022] in the context of the Copyright Board setting a tariff for online music services.
The Copyright Board concluded that s. 2.4(1.1) deems the act of making works available to be a separately protected and compensable activity. This means that two royalties would be payable when a work is distributed online:
- when it is made available online, and
- when the work is actually streamed or downloaded.
The Federal Court of Appeal overturned that decision finding that s. 2.4(1.1) did not intend to create a new compensable making available right and that s 2.4(1.1) did not subject downloads and streams to two royalties.
In dismissing the appeal the Supreme Court built on its previous jurisprudence about using the principle of technological neutrality as an interpretive tool. The Supreme Court noted that the “principle of technological neutrality holds that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted in a way that either favours or discriminates against any form of technology”.[2] They also noted that “[d]istributing functionally equivalent works through old or new technology should engage the same copyright interests”.[3]
The Supreme Court recognizes that the principle of technological neutrality is a way that public policy considerations limit authors’ rights under the Copyright Act citing Professor Carys Craig stating:
[t]his principled recognition of copyright as requiring a sensitive public policy balance, rather than simply the protection of a private property right, has had a marked impact on the landscape of Canadian copyright law. If copyright in general requires this balance, then it must surely follow that copyright in the digital era requires the preservation of this balance, which must mean that the law should have the same effect (produce a similar balance of rights and interests) whether applied offline or online.[4]
The Supreme Court identified that “the act of “making a work available” is a separate physical activity from the act of a user downloading or streaming a work”, and that “it does not follow that it is a separately compensable activity” [emphasis included].[5]
The Court confirmed its conclusion that “s. 2.4(1.1) clarifies that (1) s. 3(1)(f) applies to on-demand streams, and (2) a work is performed as soon as it is made available for on-demand streaming”.[6]
The end result is that the posting of a work such that it can be downloaded is an infringement of Section 3(1)(f) if done without consent of the copyright owner. But the posting of a work , with the consent of the copyright owner, so that it could be downloaded or streamed, does not create two separately compensable acts.
There is also an interesting administrative law perspective in this decision. In Canada (Minister of Citizenship and Immigration) v. Vavilov[7], the Supreme Court of Canada has discussed the standard of review of administrative decisions. Under the new formulation, a reviewing Court gives deference to the expertise of a tribunal and overturns the decision only if it was unreasonable. The Federal Court of Appeal’s decision was that the Copyright Board’s decision was unreasonable.
Vavilov recognized five categories for correctness review deviating from a reasonableness review (a) legislated standards of review, (b) statutory appeal mechanisms, (c) constitutional questions, (d) general questions of law of central importance to the legal system as a whole, and (e) questions related to the jurisdictional boundaries between two or more administrative bodies.[8]
In ESA 2022 the majority decided that Vavilov did not foreclose other categories for which a correctness standard could apply. The Court stated that a new category of correctness applies “when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute”.[9] As a result, the Court applied a correctness standard in coming to the decision that the making available right did not create a separately compensable right.
The minority came to the same conclusion on the making available right but applied the reasonableness standard to the decision of the Copyright Board arguing that Vavilov should be upheld as a holistic framework.
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[1] 2022 SCC 30
[2] See Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615 at para. 66.
[3] See Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 at para 63 applying Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2 S.C.R. 326, at para. 43; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615 at para. 72.
[4] See Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 at para 69 citing. Carys J. Craig, “Technological Neutrality: (Pre)Serving the Purposes of Copyright Law”, in M. Geist, ed., The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013), Ottawa: University of Ottawa Press, 2013, 271271, [Emphasis in original; p. 292.]
[5] See Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 at para 59. {emphasis in original]
[6] See Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 at para 110.
[7] 2019 SCC 65, [2019] 4 SCR 653.
[8] 2019 SCC 65 at paras 17 and 69.
[9] 2022 SCC 30 at para 28.
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