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 i.        Whether the Copyright Act, 1985, required that users had to pay two royalties to access works online, even though accessing the same work offline required paying only one royalty.

1. The Copyright Act did not exist solely for the benefit of authors. Its overarching purpose was to balance authors’ and users’ rights by securing just rewards for authors while facilitating public access to works. When that balance was achieved, society was enriched. Authors were encouraged to produce more works, and users gained access to works which they could use to inspire their own original artistic and intellectual creations.
2. The principle of technological neutrality helped the Copyright Act balance the rights of authors and users. The principle held that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted so as to favour or discriminate against any form of technology. It protected authors and users by ensuring that works attracted the same rights and gave rise to the same royalties regardless of the technological means used to distribute the works.
3. The board’s interpretation departed from the principle of technological neutrality. It required that users paid additional royalties to access works online. Requiring that users pay additional royalties based on the mode of the work’s distribution violated the principle of technological neutrality and shifted the balance between users’ and authors’ rights that had underpinned the Copyright Act for decades decisively in favour of authors.
4. Section 2.4(1.1) clarified that section 3(1)(f) applied to on-demand technologies, and that a work was performed as soon as it was made available for online streaming. That interpretation of section 2.4(1.1) was technologically neutral and allowed Canada to fulfill its obligations under article 8 through a combination of the performance, reproduction, and authorization rights in section 3(1). If a work was streamed or made available for on-demand streaming, the author’s performance right was engaged. If a work was downloaded, the author’s reproduction right was engaged. If a work was made available for downloading, the author’s right to authorize reproductions was engaged. There were no gaps in protection.
5. The presumption of reasonableness had to give way to considerations aimed at maintaining the rule of law, which required that certain questions be answered consistently and definitively. Applying reasonableness to the board’s interpretation of the rights in the Copyright Act created two legal inconsistencies. First, it subjected the same legal issue to different standards of review depending solely on whether the issue arose before the board or the courts.
6. Second, differing standards of review could lead to conflicting statutory interpretations. For example, the board could interpret section 2.4(1.1) as requiring that users paid a performance royalty when works were downloaded, while a court could interpret the provision such that no such royalties were payable in those circumstances.
7. A treaty should be considered when interpreting statutes that purported to implement the treaty, in whole or in part. The treaty was relevant at the context stage of the statutory interpretation exercise. There was no need to find textual ambiguity in a statute before considering the treaty. The modern approach to statutory interpretation required interpreting the statute’s text in its entire context. The statute’s context included any relevant international legal obligations.
8. If a statute implemented a treaty without qualification, the interpretation of the statute needed to be wholly consistent with Canada’s obligations under the treaty. If the statute was less explicit as to the extent to which it gave effect to a treaty, the weight given to obligations under the treaty would depend on the circumstances of the case, such as the treaty’s specificity and the statute’s text. Where the text permitted, legislation should be interpreted so as to comply with Canada’s treaty obligations, in accordance with the presumption of conformity.
9. The presumption of conformity was an aid to interpretation. The task remained to give effect to legislative intent. The separation of powers required that courts give effect to a statute that demonstrated legislative intent not to comply with treaty obligations. Negotiation, signing, and ratification of treaties were acts of the executive. Once ratified, treaties did not automatically become part of domestic law; rather, they were given effect through domestic legislation.
10. While a treaty could be highly relevant to statutory interpretation, it could not overwhelm clear legislative intent. The court’s task was to interpret what the legislature had enacted and not subordinate that to what the federal executive had agreed to internationally. It was always the domestic statute that governed because international law could not be used to support an interpretation that was not permitted by the words of the statute.
11. Article 8 formed a relevant part of the context of section 2.4(1.1). The Copyright Modernization Act’s preamble stated that it was enacted in part to implement the norms of the Copyright Treaty. The wording of article 8 and section 2.4(1.1) were similar. As well, shortly after parliament passed the Copyright Modernization Act, Canada ratified the Copyright Treaty. An explanatory memorandum placed before the House of Commons regarding the treaty stated that Canada’s recent Copyright Modernization Act was developed with a view to implementing the rights and protections of the Copyright Treaty, thereby putting Canada in a position to ratify. Those facts indicated that parliament intended to fulfill Canada’s obligations under article 8 through section 2.4(1.1). That provision should therefore be interpreted so as to fulfill Canada’s obligations under article 8, to the extent possible given the Copyright Act’s text.
12. If section 2.4(1.1) was read as clarifying two things — that section 3(1)(f) applied to on-demand streams and that a work was performed as soon as it was made available for streaming — then Canada would also fulfill its obligations under article 8. Either interpretation would fulfill Canada’s obligations under article 8, but the latter interpretation was more consistent with the text, structure and purpose of the Copyright Act. For that reason, it was the latter interpretation, not the one adopted by the board, that should be given effect.
13. The opening paragraph of section 3(1) of the Copyright Act exhaustively set out three copyright interests that authors had in their works the right to produce or reproduce a work in any material form; perform a work in public; or publish an unpublished work. Section 3(1)(a) to (j) was illustrative of those three broad copyrights. For example, section 3(1)(f), which gave authors the right to communicate the work to the public by telecommunication, illustrated an activity that fell within the broader right to perform a work in public. It was not a standalone or sui generis copyright in addition to the general rights described in section 3(1).
14. The rights enumerated in section 3(1) were distinct. A single activity could only engage one of the three copyright interests. When a song was downloaded, for example, only the author’s reproduction right was engaged. Similarly, when a work was streamed, only the author’s performance right was engaged. Authors were entitled to royalties for use of their works when an activity engaged one of the copyright interests in section 3(1).
15. To determine which copyright interest was engaged by an activity, one had to examine what that activity did to the copyrighted work. A performance was impermanent- when it was over, only the memory remained. Performances also allowed authors to retain more control over their works than reproductions, as performed works could be withdrawn from the user after the performance was over. Accordingly, when an activity allowed a user to experience a work for a limited period of time, the author’s performance right was engaged. A reproduction, by contrast, gave a user a durable copy of a work.
16. Authors lost significantly more control over their works when they were reproduced. Once reproduced, authors could not limit when, how, or the number of times a user experienced the work. Accordingly, activities that gave users a durable copy of a work engage the author’s reproduction right.
17. An activity that did not engage one of the three copyright interests in section 3(1) or the author’s moral rights was not a protected or compensable activity under the Copyright Act. Authors could not prevent users from re-fixing their works on other canvasses because that activity did not engage the author’s reproduction, performance, or first publication rights. Even though altering the work in that manner was undoubtedly an activity in a physical sense, it was not a protected or compensable activity because there was no right of fixation in section 3(1) of the Act.
18. The board’s interpretation of section 2.4(1.1) was inconsistent with the text of section 2.4(1.1) and the scheme of the Copyright Act. Since downloads and streams were single protected activities, authors could charge one royalty when users accessed works as downloads or streams — a reproduction royalty for downloads or a performance royalty for streams. The board’s interpretation was entirely inconsistent with the holdings in ESA and Rogers. It would allow authors to charge two royalties for a single protected activity. If a work was downloaded, a user would pay a performance royalty for making the work available and a reproduction royalty for the download. If a work was streamed, a user would pay two performance royalties: a performance royalty for making the work available and another performance royalty for the stream.
19. There was nothing in the text of section 2.4(1.1) to indicate that that was parliament’s intent. Section 2.4(1.1) was located in the Interpretation Division of the Act. It modified the scope of an author’s performance right by modifying the definition of section 3(1)(f). Since a download was a single protected activity that never engaged section 3(1)(f), the court could not see how modifying the definition of section 3(1)(f) transformed downloads into two separately compensable activities.
20. Similarly, the court did not see how section 2.4(1.1) transformed a single activity like streaming into two separately compensable performances. While the court accepted that the act of making a work available was a separate physical activity from the act of a user downloading or streaming a work, it did not follow that it was a separately compensable activity. Had parliament intended to treat the act of making available as a new separately compensable activity, the way to do so would have been to add making available as a fourth copyright interest in the opening paragraph of section 3(1), rather than as a modification to the scope of section 3(1)(f).
21. The principle of technological neutrality held that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted in a way that either favoured or discriminated against any form of technology. Distributing functionally equivalent works through old or new technology should engage the same copyright interests. For example, purchasing an album online should engage the same copyright interests, and attract the same quantum of royalties, as purchasing an album in a bricks-and-mortar store since those methods of purchasing the copyrighted works were functionally equivalent. What mattered was what the user received, not how the user received. In its summary to the Copyright Modernization Act of 2012, which preceded the preamble, parliament signaled its support for technological neutrality, by stating that the amendments were intended to ensure that the Copyright Act remained technologically neutral.
22. The board’s interpretation of section 2.4(1.1) violated the principle of technological neutrality because it required that users pay additional royalties to access works online. To illustrate, the court considered an example of a retailer that allowed customers to purchase a digital or physical copy of an album. Regardless of whether the work was sold digitally or physically, the author’s reproduction interest in section 3(1) was engaged because the user received a durable copy of the work. The author was therefore entitled to a reproduction royalty. But under the board’s interpretation of section 2.4(1.1), purchasing the album online would entitle the author to an additional royalty — a performance royalty for making the work available for online purchase.
23. Streaming the album online would require paying a making available performance royalty and a streaming performance royalty. But playing that same album on the radio would only require paying one performance royalty. Requiring that users pay additional royalties based solely on the mode of the work’s distribution violated the principle of technological neutrality.
24. Copyright law did not exist solely for the benefit of authors. Its overarching purpose was to balance users’ and authors’ rights. It did that by securing just rewards for authors while facilitating public access to and dissemination of artistic and intellectual works, which enriched society and often provided users with the tools and inspiration to generate works of their own.
25. The Copyright Act used various tools to achieve that balance. Fair dealing, for example, promoted that balance by allowing users to engage in some activities that might otherwise amount to copyright infringement. Similarly, the idea/expression dichotomy protected that balance by extending copyright protection to only original artistic expressions, not original ideas. That ensured that the public could freely use new ideas to inspire their own original works.
26. Like fair dealing and the idea/expression dichotomy, the principle of technological neutrality was a tool for balancing users’ and authors’ rights. It ensured that authors retained the same rights over their works regardless of the technological means used to distribute those works. If the Copyright Act entitled authors to receive a certain royalty when their work was reproduced or performed offline, technological neutrality preserved an author’s right to receive that same royalty when their work was reproduced or performed online. As a corollary, it also protected users by preventing authors from extracting more royalties merely because their work was reproduced or performed online.
27. The principle of technological neutrality was designed to operate precisely in situations like the present case, where a novel technology emerged that had no clear traditional equivalent. In those circumstances, courts had to look at what that new technology did to the substance of the work by examining which, if any, of the copyright interests in section 3(1) were engaged by that new method of distributing a work. If that new technology gave users durable copies of a work, the author’s reproduction right was engaged. If the new technology gave users impermanent access to the work, the author’s performance right was engaged. What mattered was what the user received, not how the user received it.
28. Courts should not conclude that parliament intended to derogate from the principle of technological neutrality unless there was strong evidence that that was parliament’s intent. The text of section 2.4(1.1) and its placement in the Copyright Act did not support the view that parliament wanted to make downloads and streams subject to two royalties. Giving effect to the Copyright Treaty did not demand that interpretation.
29. Since there was no persuasive basis for concluding that parliament intended to derogate from the principle of technological neutrality, section 2.4(1.1) should be interpreted in a way that was technologically neutral: reproducing or performing a work online or offline should engage the same copyright interests and require the same royalties.
30. The board did not err when it concluded that article 8 required that member countries gave authors the right to control the act of making works available, in addition to any download or stream that might later occur. Authors should have recourse against individuals who uploaded their works online in a way that made them available for downloading or streaming, even if the work was never actually downloaded or streamed.
31. The Copyright Treaty did not demand that member countries create a new compensable making available right to satisfy article 8. Member countries simply needed to ensure that authors could control the physical act of making their works available. That control could be provided through any combination of rights. Accordingly, while the court agreed that the act of making a work available was a separate physical activity from a download or stream, the court disagreed with the view that the act of making a work available gave rise to distinct communications to the public (i.e., distinct performances). The making available of a stream and a stream were both protected as a single communication to the public, while the making available of a download was protected as an authorization to reproduce, and the download was protected as a reproduction.
32. In accordance with the umbrella solution, member countries had protected the act of making works available through a variety of means. Some had adopted wording similar to that in article 8. Others had made no statutory changes, relying instead on existing rights to give effect to the obligations under article 8. The United States, for example, had relied on its existing reproduction, performance, and distribution rights to give effect to its article 8 obligations.
33. The umbrella solution gave relative freedom to national legislators in choosing the right of distribution, the right of communication to the public, the combination of those rights, or a new right, to fulfil obligations under article 8. Accordingly, provided that the Copyright Act gave effect to article 8’s goals through any combination of rights, Canada would be in compliance with its obligations under article 8.
34. Section 2.4(1.1) clarified that the communication right in section 3(1)(f) applied to on-demand streams. When the Copyright Modernization Act received royal assent, it was not clear whether section 3(1)(f) applied to pull technologies like on-demand streams. In Rogers, for example, a group of music service providers argued that section 3(1)(f) did not apply to newer pull technologies like on-demand streams. Section 2.4(1.1) ended that debate by clarifying that section 3(1)(f) applied to on-demand technology, since on-demand technology allowed a member of the public to have access to a work from a place and at a time individually chosen by that member of the public.
35. Section 2.4(1.1) clarified that a work was performed as soon as it was made available for on-demand streaming. That interpretation was supported by the text of section 2.4(1.1), its context, and the broader purpose of the Copyright Act. Textually, section 2.4(1.1) said that a work was communicated when the work was made available in a way that allowed a member of the public to access a work from a place and time of their choosing. It did not say that the work needs to be accessed for it to be communicated.
36. Contextually, article 8 supported that reading of section 2.4(1.1). As discussed, article 8 required that member countries gave authors the right to control the act of making works available, in addition to any resulting download or stream. One way to do so was to clarify that a work was performed as soon as it was made available for on-demand streaming.
37. Historically, a work was performed as soon as the public was given the opportunity to experience the work for a limited period of time. For example, when a work was transmitted over cable television, the work was performed, regardless of how many customers tune in to the channel. There needed not be an audience listening to the performance, as long as the performance was meant for an audience.
38. Section 2.4(1.1) ensured that on-demand streams received similar treatment. Section 2.4(1.1) made it clear that a work was performed as soon as it was made available to the public for on-demand streaming because, at that point, users were given the opportunity to temporarily experience the work. Once a work was made available for on-demand streaming, all users had to do was tune in to the stream to experience the work. That was the digital equivalent of flipping to a 24/7 television channel that was continuously playing — that was performing — a particular work.

 Nature of copyright in literary, musical or artistic works and audio-visual works