On August 25, 2017, the Canadian Copyright Board released its decision on the scope of subsection 2.4(1.1) of the Copyright Act, which includes making a work or other subject matter available to the public by telecommunication "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." The Board found that this provision applies when a copy of a work or other subject matter is placed on a server in a manner that allows it to be requested by a member of the public, whether or not such a request ever takes place, and whether or not the transmission is in the form of a stream or a download.

The Board found that a more limited interpretation of subsection 2.4(1.1), in which this provision applied only where a work is made available for streaming, would not comply with Canada's international obligations. In particular, the Board found that the fundamental reason for the enactment of subsection 2.4(1.1) was for Canada to comply with Article 8 of the WIPO Copyright Treaty (WCT). That provision of the WCT specifically states that artists shall enjoy the exclusive right of authorizing any communication to the public, "including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them." The Board also found that the principle of technological neutrality suggests that subsection 2.4(1.1) should be interpreted to apply both to streams and downloads.

The Board held that the introduction of subsection 2.4(1.1) did not have the effect of overturning the Supreme Court's decision in ESA v SOCAN (2012 SCC 34) in which the Court found that subsection 3(1)(f) applied to communications to the public of works and other subject matter transmitted to individual members of the public via streaming (but not to works communicated via download). The Board found that its interpretation of subsection 2.4(1.1) was not in conflict with the meaning of subsection 3(1)(f) as described in that decision, which was released after the enactment of amendments to the Copyright Act. While this statement of law may be technically accurate, the Board's interpretation of subsection 2.4(1.1) still reverses the most significant effects of the decision in ESA v SOCAN. The new provision captures the activities of services that provide musical works in the form of downloads to the public, which, prior to the enactment of this amendment, would not otherwise have been subject to the Tariff payable to SOCAN for the communication of musical works to the public.

The decision may be appealed to the Federal Court of Appeal within 30 days of the date of the decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.