SCC grants leave to appeal in SOCAN v ESA (2020 FCA 100) – Meaning of “making available”

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In 2012, the SCC decision in ESA v SOCAN (2012 SCC 34) held that no separate communication tariff applies to downloads of a musical work. However, this decision was handed down very shortly after the 2012 amendments to the Copyright Act, which included the following provision:

“communication of a work or other subject matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public”

After this enactment, the Copyright Board concluded that the meaning of this new statute is that the meaning of communication has been expanded. The Federal Court of Appeal overturned this interpretation of the new legislation, holding that the act of making available is a mere preparatory act that does not, in and of itself, trigger tariff obligations. SOCAN appeals now to the SCC, arguing that the FCA erroneously found that it was constricted by the 2012 decision, and essentially ignored and failed to apply any meaning to the new legislation.

SCC Case information here: