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

• Author: Cameron Hutchison
• Date: February 22, 2018

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...