Two recent decisions by the Copyright Board of Canada raise important issues related to the scope of “making available” in Canadian copyright law, and whether posting a work to the internet means that the work has been “published” for the purposes of the Copyright Act.

Both decisions were issued on May 11 and involved the “unlocatable copyright owners” regime under section 77 of the Act. This section gives the Copyright Board the power to issue a non-exclusive licence to use a copyrighted work where the Board is satisfied that the copyright owner cannot be located despite reasonable efforts having been made. However, this licensing power applies only to published works.

In the first decision, the applicant requested a licence to use a comment that had been anonymously posted to the Canadian Broadcasting Corporation (CBC) website in 2013. The CBC’s policy is that it does not own copyright in comments that users post on its website, so it could not grant the applicant permission to use the comment. The applicant contacted Access Copyright, a collective society that administers rights in literary works, but Access Copyright was not able to identify the author of the comment either.

In the second decision, the applicant applied for licences to use three videos that had been posted on YouTube. The applicant had incorporated these clips into a documentary film that was shown in movie theatres in Quebec and that will eventually be available as a DVD or digital download. The applicant was unable to locate the authors of the films.

In both cases, the Board ruled that while it would be appropriate for it to issue the requested licences since the owners could not be located, it could not ultimately do so, because the works in questions had not been “published”, as required by paragraph 77(1)(a) of the Act. The Board’s decision turned on the definition of “publication” in section 2.2 of the Act and how the “making available” provision was incorporated into the definition of “communication to the public by telecommunication” by section 2.4 of the Act.

Under section 2.2, a work is considered to be “published” if copies of it are made available to the public, but a work is not considered published if it is merely performed in public or communicated to the public by telecommunication. This meant the Board needed to consider whether the works in question had been communicated, rather than published.

To do so, the Board considered the scope of the communication right in light of the “making available” provision at subsection 2.4(1.1). This subsection specifies that the communication of a work to the public by telecommunication includes making it available to the public in a way that allows a member of the public to have access to the work from a place and at a time individually chosen by that member of the public.

The Board concluded that in both cases the works had been “made available” in the manner described in subsection 2.4(1.1). However, since making available is included in the right to communicate the work to the public by telecommunication, merely making works available online would fall outside the definition of “publication.” The Board found that posting the comment on the CBC website and posting the videos to YouTube were thus both communications of the works to the public by telecommunication and therefor did not constitute publication of the works. Since the works had not been published, the Board concluded that it did not have the authority to grant the licences.

The Board recognized that it might have arrived at a different answer if the works had been posted online with the intent that they be downloaded, but ruled that there was no evidence of such intent here (which is understandable since website comments are meant to be displayed, and YouTube videos are meant to be streamed, not downloaded).

The Board’s treatment of making available, which distinguished between communication of a work to the public as a public performance, and downloading a copy of the work as a reproduction, are consistent with the Supreme Court’s decision in ESA v SOCAN, 2012 SCC 34. In ESA, the Supreme Court established that a work is not communicated to the public by telecommunication when it is downloaded since, in the Supreme Court’s view, the transmission of a copy of a work is an act of reproduction and not a communication or public performance.

There was no consideration in either of the Board’s decisions as to whether the uses contemplated by the applicants might constitute fair dealing or fall under one of the other available exceptions under the Act. If either of the uses did qualify as fair dealing, the use would be non-infringing and no licence would be required.

The Board’s decisions raise important questions about the nature of online distribution of literary works. Under the Board’s analysis, works that are only made available online are not, by that act alone, published. This can have a number of knock-on effects. For example, some copyright exceptions only apply to published or unpublished works, which means that the publication status of works uploaded to the internet becomes very important. In other cases, the duration of copyright protection runs from the moment of publication. This is the case with non-dramatic films, which are protected by copyright for a period of 50 years from the date of first publication (section 11.1(a)). Whether such films are “published” by their uploading to YouTube will directly affect the length of their copyright protection.

While these are the Board’s first decisions dealing with the “making available” provision,[1] which was added to the Act as part of the 2012 enactment of the Copyright Modernization Act, the Board is expected to engage in a thorough examination of the scope and meaning of the “making available” provision in its decision dealing with SOCAN Tariff 22.A (Online Music Services).