Supreme Court to hear making available right dispute

The Supreme Court of Canada has decided it will hear an appeal from Music Canada and the Society of Composers, Authors and Music Publishers of Canada (SOCAN). SOCAN and Music Canada, which represents Sony Music Entertainment Canada, Universal Music Canada, and Warner Music Canada, are disputing a June 2020 decision from the Federal Court of Appeal that ruled the Copyright Board was wrong in finding that the “making available right” was a new exclusive right, following an appeal by Apple Inc. and the Entertainment Software Association. The so-called making available right came into play more than eight years ago when the Copyright Act was amended with the addition of subsection 2.4(1.1), according to the federal court of appeal’s decision. That section says “communication of a work or other subject-matter to the public by telecommunication” includes making it 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.” In 2017, the Copyright Board had theoretically given groups like SOCAN the right to collect royalties on music that has been made available for download online. But because the board declined to set a tariff at the time, the value of those royalties for the years that were under consideration was effectively zero. While SOCAN appealed the board’s decision by arguing that the board was wrong not to set a tariff, Apple and the Entertainment Software Association appealed the interpretation of the making available right -- the latter leading to the appeal court’s June 2020 decision and the issue now heading to the Supreme Court. Richard Pfohl, general counsel for Music Canada, said in a statement to The Wire Report Friday that the appeal court’s decision “rolled back an important Copyright Board ruling on the making available right in Canada.” "The Federal Court of Appeal's interpretation narrowed the scope of the making available right, threatening the ability of Canadian copyright owners to protect their music and other creative works online, and is at odds with Canada's international treaty obligations under the WIPO (World Intellectual Property Organization) copyright treaties,” Pfohl said. In its decision last year, the Federal Court of Appeal said that the Copyright Board “went to article 8 of the , asserted its view of that article’s meaning without any supporting reasoning,” and then interpreted 2.4(1.1) of the Copyright Act to “conform to its view.” “This is not a legally acceptable methodology. This is a misuse of international law. The Board exalted international law over domestic law,” the decision said. Article 8 of the treaty says creators shall have the “exclusive right of authorizing any communication to the public of their works, by wire or wireless means.” “SOCAN is pleased that the Supreme Court has agreed to hear us and has agreed that it’s an important issue,” Andrea Kokonis, chief legal officer and general counsel for SOCAN, told The Wire Report Friday. SOCAN and Music Canada’s separate actions with the Supreme Court have now been combined, and BCE Inc., Quebecor Inc., Rogers Communications Inc. and Shaw Communications Inc. have been added as respondents on the appeal. All four companies were also listed as respondents involved in Apple and the Entertainment Software Association’s appeal, among other groups. Bell declined to comment on the Supreme Court decision. Rogers, Shaw, nor Quebecor responded to requests for comment. The Supreme Court has dealt with this issue before. In 2012, it set aside another Copyright Board decision and said music rights holders cannot charge communications royalties from services like Apple’s iTunes for file downloads containing copyrighted music. -- Reporting by Hannah Daley at hdaley@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

Supreme Court to hear making available right dispute

Broadcast | April 26, 2021

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us

Supreme Court to hear making available right dispute

Broadcast | April 26, 2021

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Related Stories

Netflix pulling funding from Canadian arts programs due to Online Streaming Act

CTRC considering updating eligibility for Independent Local News Fund

Blue Ant joins broadcasters in call for CanCon relief

Meta considers blocking Facebook news in Australia

Reuse & Permissions

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us