Validity of “Making Available” Copyright Tariff to be Considered by Supreme Court of Canada

April 28, 2021
By François Larose, Tamara Céline Winegust and William Audet

On April 22, 2021, the Supreme Court of Canada granted applications brought by the Society of Composers, Authors and Music Publishers of Canada (SOCAN) and Music Canada for leave to appeal the Federal Court of Appeal in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100.

As we reported in our 2020 Canadian Copyright Year in Review, in June 2020, the Federal Court of Appeal quashed a Copyright Board’s decision which found that s. 2.4(1.1) of the Copyright Act deems the act of making a work available to the public a “communication to the public” within s. 3(1)(f) and thus, triggers tariff entitlement.

This appeal raises both the issue of whether the scope of the “making available provision” contained within s. 2.4(1.1) of the Act creates a new right triggering a tariff that the Copyright Board of Canada has the right to set, and for the Supreme Court of Canada to determine to what extent does the role of international treaties play in interpreting domestic legislation.

This is the second decision involving copyright for which the Supreme Court has granted leave to appeal in the last six months. The other decision, of the Federal Court of Appeal in York University v. Canadian Copyright Licensing Agency (“Access Copyright”), 2020 FCA 77, involved, in part, whether “Fair Dealing Guidelines” published by York University excused copying activities for which the University had previously paid royalties under a tariff to Access Copyright (further discussed in our 2020 Canadian Copyright Year in Review). The Federal Court of Appeal held that although the University may have made the copies for an allowable purpose (namely, education), on balance, the dealing was not fair, and thus not excused.

The last time the Supreme Court had multiple pending appeals before it relating to copyright was in 2012. That year, the Court issued a series of five decisions, commonly called the “Copyright Pentology”, setting the course for interpretation of the Copyright Act for the next decade, and introducing the concept of “technological neutrality” to interpretation of the Copyright Act. Importantly, the Pentology was released only weeks before major changes to the Copyright Act were proclaimed in force. These amendments, among other changes, added the two provisions central to the current appeals—the making available provision, and the “education” purpose for fair dealing.      

The decisions to issue from the current appeals will no doubt impact the way copyright owners and users interact with works in Canada. Stay tuned for our upcoming article on the much-anticipated Supreme Court decisions.


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