61 Reforms to C-61, Day 45: Making Available Right and Actual Distribution

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.


  1. Bits & Bytes
    I can see this getting really stupid, with regards to performance licenses. Some may remember a charity organization being nailed for copyright infringement by having a radio playing in their kitchen. The representatives demanded that they (the charity org.) must have a performance license for the radio.

    Also, what would constitute as a download in a shared folder? Bits, bytes, kilobytes, megabytes…? Maybe a file with a certain name attached to it? P2P works on a non-centralized model. So, not one person is sharing an entire file at any given time. How much of that file would be considered theft? How would you determine by file name that it is not actually a simple text document, which happens to be the name of a song or movie? An extension? .mp3 or .avi? Maybe it’s encrypted.

    If so, then rename all your media files to .xyz and associate them with your media player…

  2. Speaking of Sound Recording Maker’s
    I just posted my letter to the government (various agencies), asking for fair copyright reform, to my blog Studio Manifesto. I am an independent record producer who feels Bill C-61 has been designed for the benefit of the powerful corporate lobby’s. It will be interesting to see if any of the various public servants respond to my letter. Check out the post at [ link ]

  3. Why?
    I’ve agreed with your previous 44 reforms, but I think this one lacks clear motivation. You say “should be amended to require evidence of actual distribution.” But you don’t give a reason. Why is this provision bad? Is it overly broad, unjust, ineffective, open to abuse? I don’t see any problem with giving the copyright holder an exclusive right of “making available”. What is the specific problem that requires a change in this provision?

  4. Why? (cont.)
    That is, why should evidence of actual distribution be required. What is wrong with indicting people over evidence that they made copyrighted works available without evidence of distribution.

  5. Michael Geist says:

    Response to Carme
    Fair question. I believe the problem stems from the combination of this provision with the statutory damages provision in the Act. A person may be liable for up to $20,000 per infringement, yet without evidence of actual distribution, there is no real evidence of harm to the copyright holder. The need for evidence of actual distribution is more consistent with an awarding of damages (though $20K per infringement is absurdly high given the likely actual damages).

  6. Response to Carme
    The statutory damages issue is separate from whether there has been infringement. I agree with Carme. It is very difficult to establish downloading in these cases, which is one of the reasons that P2P is so popular. There are many barriers to obtaining evidence. Anyone placing a copyright work in a shared file must know that this is highly likely to result in subsequent use – bit like throwing open the doors of the store. To obtain evidence of actual distribution means getting information from ISPs that have been criticized previously in this blog as invading privacy. If Prof Geist’s problem is the potential for $20,000 damages – which is the maximum, but may not be too high in some cases – then focus on that. I suspect his real problem, though, is that this might result in someone actually being held accountable for copyright infringement.

  7. Maynard G. Krebs says:

    Show the Harm First
    I’m sitting in my car parked in my driveway and a cop prevents me from driving off. He issues me a ticket for speeding even though I have not exited my driveway. Why? Because I have the potential to speed in excess of the posted limit at some time.

    My computer sits on a network connected to the outside world via an always-on link. I have a copy of a Hollywood movie or a music file on it in a folder intended for my own use. If a network admin (me or somebody else) screws up a router setting my file becomes exposed to the outside world and I become guilty under C-61. Or I screw up and accidentally make a folder shared – I’m guilty. Or I use a shared folder for other people to drop things off and they decide to drop an .mp3 into it (not my doing) – but I’m guilty.

    All the computer examples are analogous to the car situation – the car or the file is just sitting there – and in both the car and computer situation it’s equally absurd to claim that an offense was committed and prosecution warranted.

    No proven harm, no foul — or does that concept only apply to corporate executives?

  8. prisons for all says:

    prisons for all
    hey this is great we can get rid of everything criminal, just arrest everyone that YOU THINK can DO A CRIME.

    yes this will work
    draft up c-61B to include every crime…..

  9. injunctive relief
    I think it is probably reasonable to accept that “making available” could be subject to injunctive relief, even in the absence of a proven harm. That is, if the shared object represents a specific potential for an infringement to occur, it is reasonable that the rights-holder should be able to ask for the sharing to stop. And if the sharer refuses to cooperate, it’s probably also reasonable that the rights holder should have some recourse.

    Naturally, we’d all like to live in a world where everything could be settled amicably between reasonable people. And in the case of an accidental exposure that should be the end of it — even if maybe a copy or two was made. Statutory damages should not apply at all. However, one should not be able to hide behind a claim of accident once notice has been given.

  10. Jason Chesworth/Broadcast This says:

    Performers “making available\”
    As an ACTRA member, I\’ve raised the question of performers \”making available\” their work with the ACTRA executive… if you\’ve followed the thread at all, you already know that ACTRA isn\’t responding to any of these issues. I realize that raising this issue can be seen as counter-productive to the goals of a union representing 21,000+ performers, but for the life of me… I can\’t see the benefit for any \”new media creator\” having to give *any* intellectual property rights to a performer that is \”interpreting\” an existing work (meaning: actors, or voice talent).

    Perhaps this is the \”indie producer\” in me talking out loud, but I certainly have to consider the value in hiring an ACTRA member for a work that I may have created if their union is going automatically insert language into a contract that gives the \”performer\” any IP rights to the work that I\’m producing.

    I agree with the substance of the argument here that amendments are needed, but more specifically, I agree with the sound recording issue. As for the rights of performers to \”make available\” their work (an actor in a TV show for example)… that\’s a Pandora\’s Box that I think should remain unopened… language needs to consider the role of a performer *as creator* before creating language giving such powerful rights with which to negotiate.

  11. OPENSOURCE says:

    The end of proprietary…
    unopening pandora:
    In the future when the world is truly democratic, no more oil and microsoft is long gone. Linux open source is the way, already you are even beginning to see open source hardware.

    Why is it with 15000 opensource games can’t we have open source entertainment. Drive the costs down, such that when it is done it is done for pleasure and the true wish to give something back, instead of the american way that is effectively destroying the planet.

    Think how most SCI FI shows see the future , not with corporations in control , nor a mpaa nor a microsoft, but a kinder and gentler society where a balance is and shall be.

    ACTRA /CRIA/MPAA/RIAA/BSA are all dinosaurs that can’t survive another 50 years at the rate of decay.

    The truth is out there.

  12. Response to Carme
    With regards to the making available, the PRINCIPLED opposition is NOT related to a romantic desire on the part of Mr. Geist or any other commenters that whatever law be unenforceable. The principle whcich warrants opposition to the making available provision is that, if your going to punish exemplarily (arguably, statutory damage are not remotely related to actual damages) then the burden to demonstrate it should be high. Lest i\’m mistaken, all uploads warrant maximum statutory award which means that a shared folder containing a full cd of say 22 songs = insane dough. In such a system, shouldn\’t the burden require that you actually get caught. I understand that some of you may think that folks criticizing this bill are for a different business model with regard to IPRs and that consequently they favor a law full of loopholes to escape getting caught. But even if that would be the case (and its certainly not for everybody) the ground on which this provision is opposed is nevertheless very valid indeed. Everyone wants all killers to be caught, right? Does that mean that the law should be framed so as to declare guilty anyone with only demonstrated capabilities? I think not. Actual murder (and intent) has to be shown. Right? And isn\’t that fairer? (think of intent, should it be removed because it permits some killer to walk away? If you think so i declare the cause lost for you) The same goes for making available. The law should not be framed so as to make it a walk in the park to sue (because the likelyness that such a system would be use for a variety of different reasons than to protect one\’s copyright) nor should it be framed so as to be able to catch ALL the infringers ALL the time. If it is framed with such intent, the likelyness that it be unbalanced is high. There is an important principle, you know, that i\’m deamed innocent before actual behavior is demonstrated, and the burden to demonstrate should never be trivial. That is clearly commandable for criminal law, because of the stigmata inflicted. But it is also commandable for laws providing huge statutory damage, because your financially crippled, destroyed, if your guilty. I don\’t think one should have to explain this principled opposition. Its an opposition OF principle and the principle is: there need to be a demonstration of actual damage (or harm), not potentiality.

    This principle DOES make it hard in the specific of IP infringement of sound recordings to prosecute, AND THAT IS THE SOLE POSSIBLE JUSTIFICATION FOR SUCH HIGH STATUTORY DAMAGE.

  13. Response to Michael Geist
    I agree that the combination is bad, but I think it makes more sense to lower the absurd statutory damages and keep “making available” an exclusive right holder’s right.

    You rightfully complain that C-61 is an analog law in a digital time. The unproportional damages are remnant of an era when making a work available for wide distribution required special equipment and was only done on a commercial scale. Damages calculations should be adjusted to be reasonable within the contexts that they are enforced today.

    But ignoring the huge erosion in the right holders’ once exclusive right of “making available” is also ignoring the realities of today’s digital world.

    Lowering statutory damages and protecting the making available right means modernizing the law for all stakeholders. Keeping the absurdly high damages and not protecting the making available right means keeping two anachronistic problems in the hope that they cancel out. But that combination creates the bad situation where most people who break the law aren’t punished because the burden of proof is too high, and the few that are punished are punished unreasonably severely.

    I think that your method of of judging the law by applying it to real-world scenarios is spot on. It’s clear that some actions, like format-shifting any owned content, archiving, etc. should be legal, and if they’re illegal under the law then it’s flawed regardless of the underlying details. I suggest applying the same bottom-line logic to making available: making a copyrighted work available for wide distribution without the right holder’s consent should be illegal and actionable. If doing so can’t be prosecuted under the law then the law is flawed and should be fixed.