Notes on CSUSA’s Breaking News Series: Supreme Court of Canada Rules on “Making Available”


HeadshotEmily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.


I recently attended the Copyright Society of the USA’s event, “Breaking News Series: Supreme Court of Canada Rules on ‘Making Available’”, which featured IP Osgoode’s own Professor David Vaver alongside Professor Ysolde Gendreau from the University of Montreal in a discussion regarding the Supreme Court of Canada’s recent decision in Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) v Entertainment Software Association (“ESA”). The unanimous decision written by Rowe J. clarified provisions of the Copyright Act, ruling that the Act only requires users to pay one royalty fee to stream works online as opposed to the two fees proposed by SOCAN. You can read more about the decision in my summary published on the IPilogue last week.

After brief introductions, the two speakers began by providing necessary context for the recent decision, including Parliament’s intentions behind the 2012 amendments to the Copyright Act. Prof. Gendreau first highlighted the three main copyrights enshrined in the Act’s section 3: the right to produce or reproduce a work, to perform a work in public, and to publish the work. Section 3 includes several subsections which list various “examples” or “actions” encompassed within these rights – the relationships between the main rights and the subsections, Prof. Gendreau highlighted, were key questions before the court. The speakers also discussed a previous SCC decision that interpreted section 3(1)(f) for the first time back in 2012; in a narrow 5-4 majority, ESA v SOCAN held that the act of downloading a work did not amount to “communicating” said work to the public by telecommunication under section 3(1)(f) (para 4). Furthermore, “making available” is not a separate and compensable right, but rather part of the communication right encompassed within 3(1)(f).

Profs. Vaver and Gendreau briefly touched upon the use of international laws and treaties in interpreting domestic legislation, cautioning against cases of the “tail wagging the dog” in statutory interpretation. They emphasized the importance of interpreting domestic statute first, and international law (WIPO’s Copyright Treaty) is a useful but secondary factor that provides context.

Interestingly, the speakers differed in their opinions about who the Copyright Act ultimately protects. While Prof. Vaver believed that the Act seeks to balance the rights of end users with original authors, Prof. Gendreau was of the belief that the Act’s protections lean towards the side of author. However, both noted that the SOCAN v ESA decision appears to freeze copyright as it is when the new technology is introduced, rather than growing alongside the subsequent adoption and growth. They both found that the SCC decision made a firm distinction between the acts of downloading and streaming, where in reality the line is blurred by a user’s ability to bookmark and cache online content.

What are your thoughts on the recent SOCAN v ESA decision? IP Osgoode invites you to share your thoughts in the comments section below.

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