Copyright's Making Available Right: Distinguishing Downloads and Streams Under the WIPO Internet Treaties

Abstract

In SOCAN v ESA, the Supreme Court of Canada carved out the making available of durable downloads from the scope of Canada’s communication right, deeming the offering of downloads to be an authorisation of reproduction. Is this adequate protection of the WIPO Internet Treaties’ communication right, which does not distinguish durable downloads from ephemeral streams? This article closely considers the Canadian position and highlights the importance of assessing the overall substantive level of protection afforded under national law, rather than relying on labels or focusing on particular protections. It concludes that Canada is likely meeting its obligations under the Internet Treaties, as authorisation in Canada is not dependent on proof of actual downloads and the standard of liability is not prescribed under the umbrella solution. The case is a reminder that the Internet Treaties call for minimum substantive levels of protection, not homogenous protection in form.