The Copyright Board just released its long awaited decision on the scope of the making available right under the Copyright Act. In a well reasoned and thorough decision, the Board ruled that the MAR right applies to the making available of both streams and downloads, acts that have to be exclusive rights in order for Canada to meet its international treaty obligations under the WCT and WPPT.
The Board summarized its reasons as follows:
As will be made clear from the reasons that follow, subsection 2.4(1.1) of the Act deems the act of placing a work or other subject-matter on a server of a telecommunication network in a way that a request from a member of the public triggers the transmission of that work or subject matter, including in the form of a stream or download, whether or not such a request ever takes place, to be a communication to the public by telecommunication.
A more limited interpretation of subsection 2.4(1.1) of the Act, which would make this provision applicable only when a work is made available for streaming, would not comply with Canada’s international obligations. The fundamental reason for the enactment of subsection 2.4(1.1) by Parliament was for Canada to comply with Article 8 of the WCT.
The interpretation of subsection 2.4(1.1) of the Act that it applies to the making available of both streams and downloads is consistent with Canada’s obligations under Article 8 of the WCT and Articles 10 and 14 of the WPPT. It is also consistent with the technological neutrality interpretation principle.
The introduction of subsection 2.4(1.1) of the Act did not have the effect of overturning ESA. The interpretation we adopt here is not in conflict with the meaning of paragraph 3(1)(f) of the Act as described in that decision.
The act of making a work available to the public remains a communication to the public by telecommunication regardless of whether the subsequent transmission is a download or a stream. It remains distinct from any subsequent act of transmission; the two acts do not merge and become a single, larger act.
Subsections 2.4(1.1), 15(1.1) and 18(1.1) of the Act came into force on November 7, 2012. The effects of these provisions are entirely prospective from those dates; they are neither retroactive nor retrospective.
The Board also released today its decision in the Online Music Services tariff proceeding.
In the interests of transparency, McCarthy Tetrault (Barry Sookman and Dan Glover) acted for Music Canada and advocated for the interpretation of the MAR right as extending to both streams and downloads.