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Music Canada involved in litigation regarding the new “making available” right under Canadian law

Lead Office


McCarthy Tétrault successfully represented Music Canada and its members in this pivotal case involving the scope of the new “making available” right under Canadian law. McCarthy Tétrault amassed international expert evidence on behalf of rights holders and convinced the Copyright Board of Canada to construe the right broadly to incorporate the making available of downloads as well as the making available of streams, and to construe the right as applying even before an actual transmission to a Canadian takes place.

The Copyright Board agreed with Music Canada, and expressly adopted its key arguments as well as the evidence of its expert, Dr Silke Von Lewinski. Its decision is now under appeal by Apple and the Entertainment Software Association as part of a three-day hearing that took place before the Federal Court of Appeal in late November 2018. A decision is still pending. When it is issued, there is a significant prospect that it will be the subject of a leave application to the Supreme Court of Canada (regardless of the result).

Music Canada is a non-profit organization whose membership is comprised of the "Big Three" major record labels, Sony Music Entertainment Canada Inc., Universal Music Canada Inc., and Warner Music Canada Co. It promotes the interests of the record labels and their artists.

McCarthy Tétrault is acting for Music Canada with a team co-led by Barry Sookman and Dan Glover that includes Connor Bildfell.