The Copyright Board interpreted the Act's making available provision to require a separate royalty when a music work was placed online for access, potentially alongside a further royalty when a listener streamed or downloaded it. SOCAN supported that interpretation. The Federal Court of Appeal rejected it and SOCAN appealed to the Supreme Court.
Does making copyright works available on demand create an additional royalty for the act of availability in addition to the royalty for actual online streaming or downloading?
The Supreme Court majority held that the making available provision clarified the existing communication right rather than creating a separate additional royalty for the same activity. Streaming a work that has been made available online is part of one continuous communication, not two separately payable acts. The interpretation respects technological neutrality, avoiding extra copyright charges solely because the same work is accessed through the Internet. A download is distinct because it concerns reproduction rights rather than the communication right. The Court also addressed the standard of review applicable to the Copyright Board's statutory interpretation.
SOCAN's appeal was dismissed. The Copyright Board's separate making available royalty theory did not stand. The Court concluded that streaming an online work requires one communication royalty, not an additional royalty simply for making it available.