A customer buys a video game. The music embedded in it is the same whether the customer carries home a disc or downloads a durable copy over the internet. Does moving the delivery method online create a second copyright payment? In Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, the Supreme Court answered no for the permanent downloads before it, overturning the Copyright Board's separate communication tariff in a divided decision.
The dispute involved game publishers and distributors represented by the Entertainment Software Association, and SOCAN, the collective society administering performance and communication rights in musical works. A purchaser could obtain a game in physical form or download a lasting copy. Reproduction royalties had already been paid in connection with the musical works. SOCAN argued that sending the same work over a network additionally engaged the right to communicate a work to the public by telecommunication. The Copyright Board had accepted that approach. The question reached the Court through the distinction between the legal rights associated with reproducing a copy and performing or communicating a work.
The five-judge majority looked beyond the fact that computers transmit data when a file is delivered. It focused on what the recipient obtained: a permanent copy of the game, functionally comparable to a copy purchased in a shop. The majority treated the internet as a technological way to deliver that copy rather than a basis for layering on a separate performance-style royalty where the rights had already been addressed through reproduction. Copyright law should not favour or penalize one method of distributing the same enduring copy without a legislative reason. That idea is technological neutrality, and it shaped the majority's interpretation of the provision then before the Court.
Four justices dissented. The dissent took a different view of the statutory communication right and the implications of delivering a work over the internet. This disagreement wasn't about whether composers deserve compensation for music in video games. It was about which rights the statute granted, how those rights interact, and whether a particular download triggers one or multiple types of royalty. Describing the case as a unanimous declaration that online distribution is free would misstate the judgment and obscure the reproduction payments already involved.
There is a commercial implication for game developers and distributors. A licensing agreement shouldn't simply say that music rights have been cleared without identifying the uses being licensed. Creating the recording, placing it in a product, selling a permanent copy and making music available through a streaming or online service can involve different factual and legal issues. The Supreme Court's ruling on durable game downloads doesn't settle every later digital business model, and the Copyright Act has also changed since the decision. The purpose of reviewing this case today is to understand the Court's reasoning, not to apply an old tariff outcome uncritically to a new platform.
Suppose a Canadian independent game studio releases an original soundtrack with its game. Players can download the entire game for offline use, but the studio also offers a separate cloud service that streams gameplay footage with the soundtrack playing. The same composition is involved, yet the activities are not necessarily legally identical. The case helps explain why a permanent copy shouldn't automatically become a performance merely because it travelled through the internet. It doesn't supply a complete clearance assessment for every audiovisual stream, synchronization, recording or online communication. Those require attention to the wording and law applicable to the particular activity.
For Binder Humanities, the deeper point is that technology changes the pathways through which art reaches people without always changing the substance of what they receive. Copyright should preserve an appropriate reward for creators while permitting new distribution methods to function. That balance isn't achieved by reflexively charging twice or by assuming all digital use is outside copyright. The majority's decision is a careful interpretation of a specific statutory right in a specific transaction.
The outcome was an allowed appeal that rejected the additional communication tariff for permanent downloads in the case. It should not be confused with a rule that music contained in downloadable games carries no copyright protection, or that services involving ongoing transmissions are legally identical to downloaded copies.
Source reviewed: Supreme Court of Canada, Entertainment Software Association v. SOCAN, 2012 SCC 34. Full majority and dissenting reasons reviewed October 10, 2026.