Talk about crazy numbering of provisions.

Let me say that again: after the Copyright Modernization Act comes into effect, Canadian Copyright Act will have section 2.4(1.1) (proudly pronounced “section two point four subsection one point one”), which section effectively adds to Canadian copyright laws what is universally referred to as the “making available right”.

This right was first recognized in the 1996 WIPO treaties, where the right is worded as the right to authorize “any communication to the public of the works, by wire or wireless means, including the making available to the public of the works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”

In Canada, by virtue of the new section 2.4(1.1) this right will fall under the umbrella of the previously existing right of “communication to the public by telecommunication”. This is done by including the “making available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public” in the definition of “communication to the public by telecommunication”.

This may be a sound policy decision, since having two or more separate rights for the same action is confusing. It is enough that uploading of a counterfeit work to the internet may already be considered both a reproduction and communication to the public. Adding a separate right of making available would necessarily raise the question, “If we need a separate right for this, then it means that neither the reproduction nor the communication to the public covers the uploading to the web, and if so, any unauthorized uploads that took place before the new law came into effect must be legitimate.”

In 1996, it made sense to make it abundantly clear that use of works online is not off-limits. Therefore, the new “making available” right came to be. But now that no one is seriously questioning the general principle that unauthorized use of copyrighted works, online or offline, constitutes copyright infringement, using one of the pre-existing rights is a safer bet for continuing disputes.

BOTTOM LINE: Good. The making available right is introduced without disturbing the balance of other rights of copyright owners.

UPDATE: Jason J. Kee (@jasonjkee) made a valid point that folding the making available right into the communication right will have implications because of the existing collective licensing regime. Personally, I’m not a big fan of overreaching collective licensing scheme (or anything collective, for that matter), but I understand that from a practical standpoint it could have been easier to create a new tariff for a new right than to amend the existing tariff to reflect the expansion of the existing right.

Tariffs, albeit very important to most authors, are not what copyright law is about. As I argued in my post How Not to Fix Copyright – My Response to William Patry, copyright is not about getting paid, copyright is about control. Existing tariffs should not determine the right to control one’s works. It is the right to control one’s works that gives rise to tariffs, when necessary.