The Saga of the Canada’s “Making Available Right” in Three Acts

Act One

Our opening scene begins with the internet wreaking havoc on a peaceful copyright countryside where copying and performing are distinct activities that never mix. The internet is changing the way works are distributed for consumption so that now they can be both performed (e.g. streamed) and copied (i.e. downloads) online. Moreover, pre-internet language of one of the performance rights – the telecommunication right – is broad enough to include both activities. The more foreboding menace is that the internet has facilitated widespread piracy through peer to peer networks (P2P). Partly because of the ambiguous nature of these rights in the internet context and the transboundary nature of file sharing, it is unclear which activities and who should be liable for P2P internet file sharing.

Enter our protagonist – the “making available right” [MAR] – which effectively identifies the point of upload as the situs of infringement, thus promising to remedy this situation. The uploader is the one who perpetrates infringement and this entity is now deterred from doing this for fear of being sued. Countries of the world agree this is the best way to identify and control infringing activities on the internet and it matters not whether the work uploaded is ultimately streamed or copied – we have “our man” and we do not need to worry about those downstream parties.

Act Two

Enter SOCAN, the acquisitive performing rights collective society for composers and publishers, which seek to impose a tariff on internet communications on the theory that their rights holders are suffering huge economic losses through piracy and internet users should be the ones to pay. As a performing rights society, they have to base their claim on a performance right – specifically the telecommunication right in this case. The Supreme Court rejects their arguments for various good reasons though it makes the fundamental mistake of characterizing downloading (or P2P file sharing) as falling under the telecommunication performance right. We have our first real complication in the story. Let’s call that case SOCAN 1.

Along comes a case which challenges this characterization. SOCAN – once again – is trying to get money on a basis even more ridiculous than in the first SOCAN case. Music synched into a video game is charged a tariff once when that game is purchased in the store (a copy tariff) but two times when downloaded online (a copy tariff and a telecommunication tariff which SOCAN 1 said you could charge). Oops. No court is going to say that’s ok. And to the Supreme Court’s credit, they didn’t. They said downloads are copies and cannot be performances. And, for comic relief, it also said that all that business about downloads being part of the telecommunication right (the foundational issue in SOCAN 1) was mere obiter. Let’s call this case SOCAN 2.

Meanwhile back at the legislature, the government has just introduced amendments to the Copyright Act to include MAR as part of the telecommunication right. And this is ok because our treaty obligation does not specify how MAR should be implemented. The amendment is very likely based on the belief that downloading fits within the telecommunication right (SOCAN 1) and the intention of the legislature is to go after P2P file sharers. However, SOCAN 2 changed that characterization so that telecommunication only applies to performances and not downloads and therefore it can no longer capture P2P file sharing. What’s more, SOCAN 2 said that streaming was a performance thereby effectively usurping MAR.

Act Three

The final act opens up with SOCAN being very unhappy with how things have turned out with MAR. They are receiving money from downloads and from streams under existing tariffs yet want more money based on preparatory acts to effect those streams and downloads – i.e. MAR. It seeks such a tariff on MAR in SOCAN 3 and finds a willing partner in the Copyright Board of Canada. The Copyright Board agrees that MAR is a distinct right that exists irrespective of how, or whether, the work is ultimately consumed as a copy or a stream. In other words, SOCAN and others get compensated twice for a single activity.

But this ruling is exactly the kind of double dipping that the Supreme Court in SOCAN 2 rejected. And indeed, we are now back to a situation where works purchased online will be subject to a dual fee while those purchased in the store will be subject to one. As well, the Copyright Board does not see the functional purpose MAR (to deter and enforce infringement on the internet by identifying a clear situs of liability) but sees it as an extra right being given to copyright holders. Indeed, the whole point of including it as part of the telecommunication right seems to be not to create a distinct right but to provide an easy situs of liability when rights holders are not being compensated by online consumption of content. The corollary is that when they are being compensated – as they are though tariffs for streaming and downloading – then MAR merges or dovetails into the telecommunication right. That is why it is included as part of the telecommunication right and does not stand on its own.

The happy ending to this story will have to be written by an appeal court.