When a song becomes available to stream online, copyright owners are entitled to the royalties the law provides. But should the act of putting that song online attract a separate royalty, followed by another when somebody listens? That was the question in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30. The Supreme Court's answer matters to composers, performers, music publishers, streaming platforms and the people trying to develop sustainable businesses around recorded music.
The dispute arose from the Copyright Act's provisions governing the communication of protected works to the public by telecommunication. Amendments made in 2012 clarified that the right includes making a work available for access at a time and place chosen by the user. The Copyright Board interpreted that language as establishing a separately compensable event when a work was posted online. Under that approach, a service might pay for making music available and then pay again when a listener downloaded or streamed it. SOCAN, the collective rights organization, supported that reading.
The Federal Court of Appeal overturned the Board's interpretation, and SOCAN appealed. At stake wasn't whether musicians deserve to be paid. It was how copyright identifies the activities for which payment can be required, and whether introducing a new digital distribution method should trigger additional payments for the same underlying use.
The Supreme Court dismissed the appeal. Writing for the majority, Justice Malcolm Rowe concluded that the making available provision clarifies the communication right rather than creating a second royalty simply because a song can be selected online. When someone later streams that same work, the transmission is part of a continuous act of communication beginning with availability. The law doesn't treat the original online availability and the eventual stream as two independently payable communications.
Technological neutrality was central to that interpretation. The Copyright Act should not automatically increase the royalty burden merely because listeners use the Internet instead of another method of receiving the same work. Requiring another fee simply for online availability, in addition to the fee payable for the stream, would treat digital delivery differently without a sound statutory basis.
Importantly, the Court distinguished downloading. Downloading creates a copy of the work, engaging reproduction rights rather than simply the right to communicate music to the public. Those rights mustn't be collapsed into one category, and the decision shouldn't be read as eliminating legitimate reproduction royalties. The Court also considered how judicial review operates where statutory questions fall within the Copyright Board's mandate. The majority and concurring judges agreed on the result while taking different approaches to an aspect of the review framework.
For smaller creators and independent labels, the result is not an invitation to give away music. It illustrates why an intelligible licensing framework matters. People selling rights need to know which activity is being licensed, while new services need to know that moving a familiar form of use online won't necessarily double the licence cost. Clear distinctions between reproduction and communication can help avoid disagreements that drain resources from both artists and businesses.
There is also a broader cultural dimension. Technology changes how music reaches people, but those changes shouldn't obscure the creative work at the centre of the exchange. An artist may release a recording, revisit it through remixes, collaborate with other musicians or permit new kinds of distribution. Each development can be meaningful without requiring us to pretend that the same act of listening has somehow become two separate uses merely because it passed through a different technical system.
The Supreme Court's ruling addresses a specific statutory interpretation issue, not every possible digital licensing arrangement. The appeal was dismissed, and a separate making available royalty for the same stream was rejected. For anyone navigating the music business, it's a reminder that respecting creators and respecting the structure of copyright law are complementary responsibilities.
Source limitation: This commentary is based on the Supreme Court of Canada's official Case in Brief, prepared by Court staff. The Court cautions that these summaries are not part of the reasons for judgment. The full judgment is the authoritative source for legal reliance.