Bill C-61 unsurprisingly includes a new "making available" provision that grants performers and sound recording makers the exclusive right to make their works available. Two provisions establish the making available right in the bill (similar rights are already granted to authors and composers). Section 15 (1.1)(d) provides that
a performer's copyright in the performer's performance also consists of the sole right to do the following acts in relation to the performer's performance or any substantial part of it and to authorize any of those acts
(d) to communicate to the public by telecommunication a sound recording of it in a way that allows a member of the public to access it from a place and at a time individually chosen by that member of the public
Section 18 (1.1) provides that
a sound recording maker’s copyright in the sound recording also includes the sole right to do the following acts in relation to the sound recording or any substantial part of it and to authorize any of those acts:
(a) to communicate it to the public by telecommunication in a way that allows a member of the public to access it from a place and at a time individually chosen by that member of the public
The concern associated with these new rights stems from their possible overbreadth in file sharing litigation. In particular, does communicating require actual communication or is placing a file in a shared folder enough? In other words, does there need to be evidence of actual downloading (and thereby actual harm)? In the U.S., there have been a growing number of cases where courts have considered the need for some evidence of actual distribution (Atlantic v. Howell, Thomas). Bill C-61 fails to clarify this issue and should be amended to require evidence of actual distribution.