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Music Canada involved in litigation regarding the new “making available” right under Canadian law

Date Closed

July 15, 2022

Lead Office


McCarthy Tétrault represented the appellant Music Canada in a Supreme Court of Canada copyright case interpreting the “making available” provisions of the Copyright Act.

In Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al., 2022 SCC 30, the Court reaffirmed the principle that if a statute is intended to implement an international treaty, the statute should generally be interpreted in a manner consistent with that treaty.

Applying this principle, the Court held that the Copyright Act fully implements Canada’s international obligation under art. 8 of the WIPO Copyright Treaty to give authors the right to control the act of making a work available to the public online, whether via stream, download, or other means. The Court held that the Copyright Act fully implements this obligation through a combination of rights, including a broad authorization right that covers the act of making a work available for downloading online. This interpretation ensures that the Copyright Act contains no gaps in protection and continues to give copyright holders powerful tools against online infringement.

The Court also held that courts should review issues of law decided by the Copyright Board on the standard of correctness — the strictest standard of appellate review.
Music Canada is a non-profit organization that represents the interests of Canada’s major record labels. Music Canada advocates for a healthy and vibrant Canadian music ecosystem, which includes record labels, performing artists, publishers, songwriters, managers, and others.

McCarthy Tétrault represented Music Canada with a team led by Barry Sookman (Business) and Dan Glover (Intellectual Property) that included Connor Bildfell (Litigation).