In the ESA v. SOCAN, 2012 SCC 34 case, the Supreme Court decided by a 5 to 4 majority that the transmission of a copy of a musical work to members of the public is not a communication to the public within the meaning of Section 3(1)(f) of the Copyright Act. When the Copyright Modernization Act was enacted the communication to the public right was expanded to expressly confer on copyright holders making available rights required by the WIPO Treaties. This was accomplished, inter alia, by the inclusion of Section 2.4(1.1) which provides that:
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