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Cassels Copyright Team Appears Before Supreme Court of Canada in SOCAN v. ESA


On January 18, 2022, members of the Cassels copyright litigation team appeared before the Supreme Court of Canada in SOCAN v. Entertainment Software Association, a pivotal case that will determine the scope of protection available under Canadian copyright law when music, movies, and other works are made available to the public on demand. Casey Chisick and Eric Mayzel represented the Society of Authors, Composers and Music Publishers of Canada (SOCAN), one of two appellants in the case, and Jessica Zagar represented Music Publishers Canada (MPC) and Association des professionels de l’edition musicale (APEM) as interveners.

At issue in the appeal was the meaning of section 2.4(1.1) of the Copyright Act—sometimes known as the making available section—which was added to the statute in 2012 as part of the Copyright Modernization Act. The making available section expands the existing communication right in the Copyright Act to include the act of making works available on demand—that is, in a way that they can be accessed by individual users from a place, and at a time, individually chosen by them. That protection is an essential tool for fighting online piracy, supporting new and innovative business models, and ensuring fair compensation for creators and rights holders.

The Copyright Board ruled in 2017 that, consistent with Canada’s obligations under the WIPO Copyright Treaty (WCT), the making available section triggered protection from the moment a work is made available, whether it is subsequently transmitted as a stream, as a download, or not at all, thus entitling SOCAN and other rights holders to be compensated for the act of making available separately from any act that might follow. The Federal Court of Appeal reversed that decision, finding that the Board had misinterpreted the section and relied improperly on the WCT in reaching its conclusion.

Before the SCC, Casey Chisick argued for SOCAN that the text, context, and purpose of the making available section all point to a technologically neutral interpretation that protects the act of making available regardless of what follows. He also submitted that the 2012 decision of the SCC in ESA v. SOCAN does not preclude that conclusion (and is in fact consistent with it) despite its holding that digital downloads were not “communications to the public,” that any other interpretation would put Canada offside its international obligations, and that denying rights holders compensation when their works are made available on demand would undermine the balance inherent in the Copyright Act.

Jessica Zagar argued, for MPC and APEM, that failing to recognize that making available is separately compensable would be inconsistent with the inherent divisibility of copyright, as well as the 2015 decision of the SCC in Canadian Broadcasting Corp. v. SODRAC 2003 Inc.

The Court reserved its decision. Click here to view the archived webcast of the hearing.

This appeal was the seventh time in recent years that the Cassels copyright team has appeared before the SCC. Previously, they have made important contributions to the decisions of the Court in ESA v. SOCAN (2012 SCC 34), Rogers Communications v. SOCAN (2012 SCC 35) SOCAN v. Bell Canada (2012 SCC 36), Alberta (Education) v. Access Copyright (2012 SCC 37), Canadian Broadcasting Corp. v. SODRAC 2003 Inc. (2015 SCC 57), and York University v. Access Copyright (2021 SCC 32).