• Dr. Mohan Dewan

 According to the DPIIT’s Handbook of Copyright Law, making any work accessible for the public to view, hear, or otherwise experience directly or by any method of exhibition or dispersion is referred to as ‘communicating with the public’. Curiously enough, it is not imperative that any member of the public actually enjoys the work so made available through his sense perception. For instance, even though a cable operator may telecast a cinematograph film which no member of the public may see, it would still be considered as ‘communication to the public’. Thus, the fact that the work in question is accessible to the public is sufficient enough for one to proclaim that the work is communicated to the public.


Recently, in the matter of Society of Composers, Authors, and Music Publishers of Canada v. Entertainment Software Association, The Federal Court of Appeal of Canada held that ‘making available’ a music stream online and the successive act of streaming/ downloading the same track are not subject to two separate royalties. The Federal Court of Appeal set aside the ruling of the Copyright Board of Canada on the basis that the Canadian Parliament did not aim for such acts to be viewed as two separate and distinct conducts.


Thus, for example, for an e-book to be circulated through the Web, on demand, in India, it would be imperative upon an individual to check whether the e-book is made available either for ‘download’ or as a ‘stream’. Here, ‘streaming’ may be considered as a method of delivery of data from the internet straight to a user's computer or phone screen without having to be download it first.

In addition to this, one would require to weigh in the amount of royalty to be charged—whether the act of making the e-book available (through a link) should be taken as a separate remunerative activity or not; and the factum of that e-book being streamed or downloaded be deemed deserving of more royalties?

It is important to note that each of such pursuits capture separate rights of the copyright owner. Thus, if an e-book is made obtainable for on-demand online reading through subscription databases, the copyright owner can claim his ‘communication to public’, irrespective of anyone actually reading it. However, if the same e-book is made available for downloading, then the copyright owner can claim his ‘right to authorise reproduction’. Furthermore, if this e-book is in fact downloaded, the copyright owner’s ‘reproduction right’ would be said to be engaged.

In India, neither any case law nor any statute have addressed whether royalties must be paid twice, once at the time of disseminating the e-book to the public and again at the time of accessing/downloading it. At most, if the DIPP Office Memorandum of 2016 can be considered as a document of binding nature, then communication to public would also include internet broadcasting.


Fortunately, the Canadian case here, can be looked forward to when searching for relevant answers. Amongst many things, this case makes the distinction clear between ‘on-demand streams’ and making a work available for ‘download’. Interestingly, the Supreme Court of Canada held that on-demand streams would be considered as works ‘communicated to the public’ even if they are transmitted to individual members of the public rather than to the public, in general. It was also held that the said work would be treated as ‘sufficiently communicated’ (to the person making the demand) irrespective of whether it is ever actually streamed by him/her. Needless to say that it is the initial act of granting the permission to stream that has been recognised as a claim-worthy right.

The court further made it clear that the communication right is not involved when a work is made accessible for "download". Instead, the "authorization" right safeguards it and subsequent downloads are protected by reproduction rights.

The above interpretation adopted in Canada regarding the operation of the ‘authorisation right’ is unique and a distinct right granted to the copyright owners. Further, the Court held that making the downloadable link available to the public and actual download is treated as one activity for the purposes of charging copyright royalties.

It is important to understand that, making a work available for download which is understood as communication and the actual download belong to the same right— ‘reproduction’.

To sum up, the Canadian case makes it absolutely clear that all acts of ‘making available’ are recognised by the Copyright law, either through authorisation, reproduction, or communication rights, or a combination thereof.

Given that the law in India pertaining to Copyrights bears similarities to the Canadian Copyright Law in terms of the "communication to public" right or the "making available" right, this decision is important & the Indian Courts can refer to this case as a precedent in the encounter of a similar scenario.


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