Solving the Conundrum of ‘Communication to Public’ AKA ‘Making Available’ Right: Lessons from Canada

We are pleased to bring you a guest post by Dr. Sunanda Bharti discussing the Canadian decision in Society of Composers, Authors, and Music Publishers of Canada v. Entertainment Software Association on ‘making available’ rights and its application to India. Sunanda is a Professor in Law at Delhi University and has written several guest posts for us, which can be viewed here.

Solving the conundrum of ‘Communication to Public’ AKA ‘Making Available’ Right: Lessons from Canada

Sunanda Bharti

The Federal Court of Appeal of Canada, in Society of Composers, Authors, and Music Publishers of Canada v. Entertainment Software Association, recently held that ‘making available’ a music stream online and a subsequent act of streaming / downloading the music are not subject to two separate royalties. The Federal Court of Appeal overturned the decision of the Copyright Board of Canada on the ground that the Canadian Parliament did not intend for such acts to be viewed as two separate transactions.

This ruling is significant in the Indian context since Indian copyright law is similar to Canadian copyright law with respect to the ‘communication to public’ right or the ‘making available’ right.

For example, if an e-book were to be disseminated through the Internet, on demand, in India, one will need to examine whether the e-book is made available for ‘download’ or as a ‘stream’. Here, ‘streaming’ is to be understood as an alternative to file ‘download’ where the user does not obtain a durable copy of the e-book.

Additionally, one would need to consider the royalty to be charged—whether the act of making the e book available (through a link) should be taken as a separately compensable activity; and the factum or scenario of the e book being streamed or downloaded be considered as meriting another royalty?

Each of these activities engage separate rights of the copyright owner. For instance, if the e-book is made available for on-demand online reading, through subscription databases, the copyright owner’s ‘communication to public’ right is engaged irrespective of whether it is in fact read by anyone. On the other hand, if the e-book is made available for downloading, the copyright owner’s ‘right to authorise reproduction’ is engaged. If the e-book is in fact downloaded, the copyright owner’s reproduction right is engaged.

Answers to whether royalties need to be paid twice i.e., once at communicating the e-book to public and the second at accessing / downloading have not been provided in India either through case law or statute. At most, if the DIPP Office Memorandum of 2016 is to be taken as law, communication to public would include internet broadcasting.

The Canadian case, however, fits in well and can supply some answers. Amongst other things, the case brings out the distinction between ‘on demand streams’ and making a work available for ‘download’.

The Canadian SC held that on-demand streams are considered as works communicated to the public even though they are transmitted to individual members of the public rather than to the public generally. I have argued in the past that publication under the Indian Copyright Act is also not dependent on the number of people who know about the work but rather the intention with which it is made available.

It was also held that the concerned work is considered as sufficiently communicated (to the person making the demand) irrespective of whether it is ever actually streamed by him/her. Meaning, it is the initial act of granting the permission to stream that has been recognised as a right.

On the other hand, the court held that making a work available for ‘download’ does not involve the communication right. Instead, it is protected by the ‘authorisation’ right. In the given case, the ‘right to authorise’ reproduction of the work as a download; while the subsequent download, if any, is protected by the reproduction right. Also, notable is that the former is sufficient for alleging infringement (if say, the link of the concerned e-book is shared without consent, but the book is yet to be downloaded).

The above interpretation adopted in Canada regarding the operation of the ‘authorisation right’ is unique. Through it, the court settled that the right of authorisation was a distinct right granted to copyright owners. It also enables one to fill in the gap that existed in rights.

Further, the court held that making the downloadable link available to the public and actual download is treated as one activity for the purposes of charging copyright royalties. It is not that making a work available for download is communication and actual download, reproduction. Both transactions belong to the same right—that is, ‘reproduction’. Likewise, in case of making the streaming link available and actual streaming, only one right is engaged —that is ‘communication to public right’.

To summarise, the Canadian case is relevant because it holds that all acts of ‘making available’ are recognised by Copyright law, through a combination of authorisation, reproduction and communication rights. This case can guide Indian courts if they are confronted with similar cases.

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