Supreme Court Of Canada Recognizes ‘Making Available' Right

In the recent Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 decision, the Supreme Court of Canada recognized that copyright owners may prevent others from offering to stream copyrighted works, even if no actual streaming or downloading occurs.

SOCAN, the collective society representing songwriters and music publishers, sought to differentiate streaming into two rights — one was the "making available" right (offering to stream) and the other was the "performance" right (actually streaming). While the Supreme Court agreed that a making available right existed, it was part of the performance right, and therefore no separate royalty was required.