On July 15, 2022, the Supreme Court of Canada released its highly-anticipated decision in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association.1 The decision recognizes the right of copyright owners to control the making available of their works on demand over the internet - whether the work is subsequently transmitted as a stream, as a download, or not at all - through a combination of the communication right and the right to authorize reproductions. In reaching that conclusion, the Supreme Court confirmed that Canada has fully implemented its "making available" obligations under the WIPO Copyright Treaty. It also emphasized that an international treaty should be considered when interpreting a statute that purports to implement the treaty, in whole or in part.
Background
SOCAN v. ESA considered the proper interpretation of section 2.4(1.1) of the Copyright Act, sometimes known as the making available provision.2 That section provides that the communication of a work or other subject matter by telecommunication includes making it available to the public in a way that it can be accessed on-demand-that is, from a place and at a time chosen by each individual user.
The making available provision was introduced in 2012, through the Copyright Modernization Act,3 to implement Canada's obligations under the WIPO Copyright Treaty (WCT). The WCT was negotiated in 1996, together with the WIPO Performances and Phonograms Treaty, for the purpose of updating international copyright norms for the digital age. As part of that modernization, these WIPO Internet Treaties required state parties to provide copyright protection for the act of making works and other subject matter available on demand.4 Canada signed both treaties in 1997, but did not ratify them until after the Copyright Modernization Act was enacted.
In 2013, the Copyright Board initiated a special proceeding to consider the impact of section 2.4(1.1). It ultimately concluded that the provision expanded the existing communication right in the Copyright Act by deeming the initial act of making a work available for on-demand access to be a distinct act of communication to the public by telecommunication, regardless of whether the work is later transmitted as a stream, as a download, or not at all.
The Federal Court of Appeal overturned the Copyright Board's decision. In that decision, the court chose not to opine on the correct interpretation of section 2.4(1.1)...
