Sports and Entertainment

Although the more nostalgic among us were recently celebrating the announcement of a third film (and sequel) of In a galaxy near you (Dans une galaxie près de chez vous), a sci-fi series on Quebec TV, sports fans might be disappointed if the arena near them ever ends up being renamed. In the first instalment of our series of articles on sports law, we examined various issues surrounding team branding. We would now like to focus on the naming of stadiums, arenas and our favourite sports venues, which often feature corporate names or trademarks. In a press release dated August 15, 2023, the Montreal Canadiens announced that their training centre, previously known as the Bell Sports Complex, would be renamed the CN Sports Complex. The reasons for this change have to do with naming rights agreements. These agreements stem from a “marriage of values” for commercial purposes between two brands that share a number of clearly defined objectives. In this article, we will answer two fundamental questions: how do these agreements work and what are the objectives? Defining a naming rights agreement A naming rights agreement is a contract between a company and an operator or owner of a venue, building, event or facility. Under such agreements, a company obtains the exclusive right to name a venue, building, event or facility by making royalty payments or providing other benefits. This enhances the company’s visibility because its name or brand is now associated with the venue, building, event or facility. In return, the owning or operating entity is paid a royalty that helps to support its activities or boost its profitability. Naming rights agreements are commonly used for naming stadiums, arenas and sporting events. It should be noted that naming rights agreements are different from sponsorship agreements. A sponsorship agreement is another type of arrangement under which a company can obtain visibility associated with an event. For example, the Royal Bank of Canada entered into a sponsorship agreement with the Montreal Canadiens to display its logo on the team’s jerseys. One of the main differences between sponsorship agreements and naming rights agreements is their duration. A sponsorship agreement has a shorter term (usually 3 to 5 years), whereas a naming rights agreement may run from 5 to 20 years, sometimes longer. An ever-growing market Underscoring the importance of naming rights agreements, over 90% of the teams in North America’s five largest professional sports leagues have signed one: In Europe, the most popular sport by far is soccer. The status of naming rights agreements in European soccer is not comparable to the North American situation, but everything indicates that their popularity will continue to rise in the coming years: What are the primary objectives of naming rights agreements? Although most North American sports teams have entered into naming rights agreements, the frequency with which stadiums or sports venues are renamed remains low due to the long-term nature of these arrangements. Companies are prepared to invest considerable sums in these agreements. There are various reasons for this, including the desire to partner with an organization that shares certain values, or to reap the benefits of a unique financial tool, or to consolidate business interests or gain a foothold in a given market. In 2017, the Air Canada Centre, which hosts the Toronto Maple Leafs (NHL) as well as the Toronto Raptors (NBA), was renamed the Scotiabank Arena. Under this agreement, Scotiabank will reportedly pay $40 million annually over 20 years to maintain the new name. At the time, this was a record amount. But the new (publicly disclosed) record is now held by the Crypto.com Arena, formerly known as the Staples Center, home to two NBA teams (LA Lakers and LA Clippers), together with the LA Kings (NHL). In 2021, Crypto.com agreed to pay approximately $50 million annually for 20 years. In addition to the recent CN Sports Complex name change, Uniprix Stadium,which hosts the Omnium National Bank tennis tournament, became IGA Stadium back in 2018. When the IGA Stadium agreement was concluded, Eugène Lapierre, Senior Vice-President at Tennis Canada, offered this assessment: “IGA attaches a good deal of importance to healthy eating, while for our part, we’re working hard to develop tennis in Canada. Our objectives are in sync.”1 Similarly, France Margaret Bélanger, President, Sports and Entertainment of Groupe CH, confirmed this marriage of values between the Montreal Canadiens and CN: “CN is not only a world leader in transportation, but also an iconic Canadian company which, like the Canadiens, has been based in Montreal for over a century.”2 It is clear that these companies were carefully selected on the basis of “common ground”, which implies a sharing of values between them and the operators of the IGA Stadium and the CN Sports Complex. Choosing the right partner: a key strategic issue Choosing the right company whose name or brand will be publicly displayed is essential. An owner or operator will want to avoid any association with a company whose identity is incompatible or whose values are not in alignment. Several examples of dubious partnership choices spring to mind: The Chicago White Sox’s baseball stadium changed its name from U.S. Cellular Field to Guaranteed Rate Field in 2016. This change sparked controversy, drawing ridicule from the public. The problem was that the White Sox are a high-profile brand, known throughout the sports world and enjoying immense prestige. In contrast, Guaranteed Rate was a local company, unknown to many baseball fans, and was simply unable to bear the weight of a storied franchise such as the White Sox. The social networks lit up at the time, adding to Guaranteed Rate’s visibility. The company certainly achieved its objective of “getting its name out there”! Away from the sports realm, another relevant example is the Toronto Transit Commission (TTC), which operates that city’s mass transit system. In April 2023, the TTC announced that it wanted to look into the possibility of selling the rights to name train or subway stations – an idea that it had initially announced in 2011. The outcry was immediate: “This will turn the TTC into a joke”, said Rami Tabello, a representative of the Toronto Public Space Initiative. “It's going to turn our civic identity and put a price tag on it. We need to say that our city is not for sale.”3 Just imagine the conductor’s announcement: “Next stop, Pepsi Station”! Structuring a naming rights agreement Although the parties to naming rights agreements are free to negotiate their own terms and conditions, certain provisions should be included to ensure a good long-term relationship. A naming rights agreement should be comprehensive and detailed enough to enable both parties to “uncouple” quickly and easily if a disturbing or controversial event occurs that could have an adverse impact on their brand image or reputation. As a general rule, such agreements include a termination clause in case one party defaults or is in breach of contract. It is therefore important to clearly identify what constitutes a default or a breach of contract. Along with the digital boards, certain spaces on the ice of hockey rinks or advertising on helmets, crests or jerseys, the rights stemming from a naming agreement are valuable assets that can be monetized by means of various financial instruments. Not only can these agreements be monetized as soon as they are signed, but they can also be transferred for a consideration to a third party, such as an alternative investor. Hence the importance of ensuring that naming rights agreements are flexible and transferable, thereby facilitating third-party transfers and monetization. As an additional type of financial instrument, naming rights agreements provide immediate access to cash flows. Intellectual property and trademark rights: what precautions should be taken? Naming rights agreements often facilitate the creation of new intellectual property linked to the joint use of brands. According to trademark law, the owner of a brand must, and is generally assumed to, exercise control over the products and services associated with the brand. In addition, when a new form of use extends to new services stemming from a naming rights agreement, it is advisable to verify whether the brand’s trademarking is sufficient or should be extended. Here is another point to consider: when the naming rights agreement expires, the chosen partner must not have permanently acquired rights to the brand. These agreements, therefore, must carefully circumscribe property rights as well as the terms and conditions governing intellectual property. It is also important to outline the civil liability arising from use of the brand. Considerations include compensating the brand owner for the partner’s use of the brand and, conversely, compensating the partner in the event that the brand infringes third-party-owned intellectual property. In any event, the brand owner cannot stand idly by if the user goes beyond what is permitted in the agreement (this would amount to breach of contract). North America and Europe: two different realities Naming rights agreements generate significant revenues for sports teams. A team unable to find the right partner may find itself at a disadvantage vis-à-vis other competitors in its league or even compared to other sports. This is the daunting reality facing a number of European soccer clubs, which are having a harder time finding partner companies for naming rights agreements than sports teams are in North America. One British example involves London-based Tottenham Hotspur, which has been unable to find a co-contractor to enter into a naming rights agreement for its new stadium since 2019. The team is now in serious financial difficulty and is attempting to host events other than soccer (concerts, boxing, NFL games, etc.) to make up for its revenue shortfall. In Europe, naming rights agreements are not as widespread as they are in North America. This is primarily due to the fans’ reaction. In Europe, soccer boasts a tradition-steeped history: fans tend to be opposed to change or to the idea of “selling” an iconic stadium to a company. On the other side of the Atlantic, marketing icons are often linked to companies that have signed naming rights agreements. To understand this phenomenon, consider the city of Pittsburgh and the Steelers’ football stadium, which was named Heinz Field for over 20 years under an agreement involving (unsurprisingly) the Heinz company. The stadium was also home to two gigantic Heinz ketchup bottles mounted atop the scoreboard: Image 1: Heinz ketchup bottles atop the Heinz Field scoreboard. The Heinz agreement expired and the facility was renamed Acrisure Stadium in July 2022; the ketchup bottles were removed. Steelers fans were soon calling for the ketchup bottles to be brought back—in their eyes, the gigantic bottles were an emblem of the team. Art Rooney II, the team’s legendary owner, acceded to the fans’ demands earlier this year: one of the bottles was reinstalled above a gate outside the stadium. Image 2: Some fans were outraged when the Heinz ketchup bottles were removed from Acrisure Stadium. Image 3: One of the ketchup bottles was reinstalled above Gate C outside the stadium. It should be noted that the Heinz company was founded in Pittsburgh in 1869 by Henry J. Heinz; it is still headquartered there. In Pittsburgh, the Heinz family is both emblematic and iconic. For local residents, Heinz is much more than a brand of ketchup or a food processing company: it is a key part of their history and culture, interwoven with the social fabric. The Heinz ketchup bottles towering over the football stadium were not just a marketing ploy; they were also a cherished symbol for the community and the city of Pittsburgh. Conclusion Unbeknownst to many of us, the impacts of naming rights agreements can be felt discreetly in our day-to-day lives. In addition to being a vehicle for conveying emotions and exerting an influence on our experience of certain events and places, these agreements drive our emotional attachment to certain sports properties. Pierre Durocher, Le stadium Jarry change de nom, Le Journal de Montréal, April 16, 2018 (https://www.journaldemontreal.com/2018/04/16/le-stadium-uniprix-devient-le-stadium-iga). Montreal Canadiens, Montreal Canadiens' practice facility to be named CN Sports Complex, media release, August 15, 2023 (https://www.nhl.com/canadiens/news/montreal-canadiens-practice-facility-to-be-named-cn-sports-complex-345595466). CBC News, TTC deal opens door to station naming rights, July 6, 2011 (https://www.cbc.ca/news/canada/toronto/ttc-deal-opens-door-to-station-naming-rights-1.1023460).

Choosing the name of a sports team can be a perilous exercise. In addition to representing certain values, names are supposed to fire up the fan base and motivate the athletes themselves. It must sometimes meet with the approval of major sponsors. But when sports teams are companies seeking to profit commercially from the use of their brand, legal considerations also come into play. Team names are typically linked to the organization of sports events for which tickets are sold. They may also be associated with products such as caps or jerseys that fans take pride in wearing. In these respects, the team’s name is a trademark and does not only serves to differentiate a team from its competitors but can also help to fill a company’s coffers. Team names are often associated with logos that also embody certain values. Logos may incorporate various design features, in addition to the team name, and often displayed on a wide range of products. Trademarks in sports has given rise to various problems, as seen in the examples below. Trademark Confusion Do you remember when the Canadian Football League was home to the Saskatchewan Roughriders as well as the Ottawa Rough Riders? This type of situation is far from ideal when watching a game and from the point of view of trademarks, it is to be avoided, since it will probably be impossible for at least one of the two teams to register its trademark. Remember that trademark registrations generally grants national exclusivity. Similar nominal trademarks, however, are quite common among sports teams, particularly when different sports are involved. Examples include the New York Rangers (hockey) and the Texas Rangers (baseball), or the Florida Panthers (hockey) and the Carolina Panthers (football). This form of “nominal coexistence” might prevent one team from registering its trademark, especially if the description of the other team’s products and services is wide-ranging. For instance, if the description of the services provided by the first team to register its trademark includes the presentation of sports events or the sale of jerseys, without specifying the associated sport, there would then be a risk of confusion from the legal point of view between the two nominal trademarks.  To register as a design mark which includes both the team’s name and a logo can sometimes resolve this problem if the teams’ logos are substantially different from each other. However, this will be ineffective if the design mark primarily consists of the team’s name. In that case, the Intellectual Property Office will consider the logo along with any accompanying text to assess the likelihood of confusion. A logo that does not include the team’s name is often easier to register, provided that it is different from the logos of other existing teams. The case of teams with the same name playing the same sport in different leagues is more complicated. Such situations often arise with minor league and major league hockey teams that have the same name. No problem arises when the minor league team is owned by the same business interests, since it is then easy to conclude a licensing agreement between the two and consolidate trademark ownership to only one company. On the other hand, such situations might also stem from a random choice of name or an unconscious desire to be associated with a major league team. At the very least, teams with the same name should consider signing a coexistence agreement. For example, on January 10, 2018, the U.S. Army’s parachute team, nicknamed the Golden Knights, filed a notice of opposition with the United States Trademark Trial and Appeal Board (TTAB) calling for the rejection of the trademark registration application filed by the NHL’s Vegas Golden Knights. Both teams ending up signing a coexistence agreement: the risk of confusion between them was perhaps more limited given the very different nature of their activities. In addition, team trademarks should aim to be distinctive and should not be limited to generic descriptions of the sport or the place where the team is based. Socially unacceptable trademarks Although they may be registered and legally valid from an intellectual property perspective, team logos or names may, however, be socially unacceptable. The notion of social acceptability actually evolves over time. Some trademarks that were used for years are no longer acceptable today. (Come to think of it, were they ever?) Take trademarks like Aunt Jemima or Uncle Ben’s, which, following decades of commercial use, were renamed to be less offensive. In the world of sports, one only has to think back to the former Cleveland Indians and their logo featuring “Chief Wahoo”. In the face of social pressure, the team dropped its logo and became the Cleveland Guardians. The same phenomenon has been observed in Canada: The Edmonton Eskimos, of CFL fame, became the Edmonton Elks after the organization acknowledged that its name could be offensive to the Inuit and other Indigenous peoples of Canada. In 2019, McGill University changed the name of its varsity sports teams from the Redmen to the Redbirds. This decision followed a referendum in which 78.8% of participating students voted in favour of the name change. In 2020, the Ahuntsic College Indians became the Eagles following a student vote. To protect their trademarks, sports teams must take into account evolving standards of social acceptability. Trademarks that avoid racial or discriminatory stereotypes are more likely to “stand the test of time”. One might wonder how much longer certain team names will last. In the NFL, the Kansas City Chiefs and the Minnesota Vikings both have names that play on stereotypes that have been contested for years. In the NHL, the same questions arise for the Chicago Blackhawks. While various communities are calling for a new name and logo, others insist that the name pays tribute to a real-life Native American. In Major League Baseball, the Atlanta Braves have faced similar scrutiny and social pressure. Team nicknames created by fans Certain team names were created by the fans themselves, not by the owners or the organizations involved. Take, for example, the “Habs” (Montreal Canadiens), the “Als” (Montreal Alouettes) or “Nos Amours” (former Montreal Expos). Are these nicknames the intellectual property of the fans that invented them? In fact, a number of these nicknames have been successfully trademarked in Canada: “Habs” has been a registered trademark since 2003 for entertainment services and since 2007 for merchandise such as clothing and other promotional items. “Als” has been a registered trademark since 2014 for all promotional items and entertainment services. “Barça”, the nickname of Barcelona’s professional soccer club (officially FC Barcelona), has been a registered trademark in Canada since 2022 for all promotional products. However, the French nicknames “Nos Amours” (Montreal Expos) and “La Sainte-Flanelle” (Montreal Canadiens) have not yet been trademarked in Canada, although applications for “Tricolore Sports” and “Bleu Blanc Rouge” were recently filed by the Montreal Canadiens. The issue that arises stems from sports teams taking the opportunity to trademark and protect nicknames that became distinctive thanks to widespread use by fans.  Trademarks linked to a sponsor Sports teams might wish to adopt a name and /or a trademark that pays tribute to their owner or a major sponsor. One example that comes to mind is the Anaheim Mighty Ducks (now the Anaheim Ducks), which were originally named after the Disney-owned film franchise. This situation is not problematic per se since two separate companies were involved. However, things can get tricky if relations with sponsors become tense or if they decide to withdraw their sponsorship. For that reason, an agreement should be in place setting out the sponsor’s trademark rights and, if the sponsorship comes to an end, how quickly the team has to change its name and trademarks. Departing sponsors should also be prevented from interfering in the management of the team. Teams should also reserve the right to change their names and trademarks for various reasons, including reputational risk. And if a sponsor sells sports equipment or other team-related products, teams should ensure that they can sell their own promotional products without infringing the sponsor’s trademark. If not contractually regulated, such situations could even affect the validity of the sponsor’s registered trademarks since the sponsor would not exercise adequate control over the trademark. The issues outlined above might not just affect the company’s image, but could also prevent it from adequately protecting its trademark. A registered trademark ensures nationwide protection; it may also cover multiple countries if applications are filed outside Canada. Above all, trademark registration provides a greater degree of legal certainty. This also greatly facilitates intervention against malicious actors seeking to counterfeit—and profit from—registered trademark and, in many cases, serves to block imports of counterfeit merchandise. From the outset, sports teams that wish to profit commercially from their brand should check at the outset whether it can be registered as a nominal and/or design trademark. If it cannot, they are advised to work closely with their legal teams and trademark agents to find an alternative name or logos that are not affected by the above-mentioned issues.

In Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association1 (the “SOCAN Decision”), the Supreme Court of Canada ruled on the obligation to pay a royalty for making a work available to the public on a server, where it can later be streamed or downloaded. At the same time, it clarified the applicable standard of review for appeals where administrative bodies and courts share concurrent first instance jurisdiction and revisited the purpose of the Copyright Act2and its interpretation in light of the WIPO Copyright Treaty3. The Supreme Court also took the opportunity to reiterate the importance of the principle of technological neutrality in the application and interpretation of the Copyright Act. This reminder can also be applied to other artistic mediums and is very timely in a context where the digital visual arts market is experiencing a significant boom with the production and sale of non-fungible tokens (“NFTs”). In 2012, Canadian legislators amended the Copyright Act by adopting the Copyright Modernization Act4. These amendments incorporate Canada’s obligations under the Treaty into Canadian law by harmonizing the legal framework of Canada’s copyright laws with international rules on new and emerging technologies. The CMA introduced three sections related to “making [a work] available,” including section 2.4(1.1) of the CMA. This section applies to original works and clarifies section 3(1)(f), which gives authors the exclusive right to “communicate a work  to the public by telecommunication”: 2.4(1.1) Copyright Act. “For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it 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.” Before the CMA came into force, the Supreme Court also found that downloading a musical work from the Internet was not a communication by telecommunication within the meaning of section 3(1)(f) of the CMA5, while streaming was covered by this section.6 Following the coming into force of the CMA, the Copyright Board of Canada (the “Board”) received submissions regarding the application of section 2.4(1.1) of the Copyright Act. The Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) argued, among other things, that section 2.42.4(1.1) of the Copyright Act required users to pay royalties when a work was published on the Internet, making no distinction between downloading, streaming and cases where works are published but never transmitted. The consequence of SOCAN’s position was that a royalty had to be paid each time a work was made available to the public, whether it was downloaded or streamed. For each download, a reproduction royalty also had to be paid, while for each stream, an additional performance royalty had to be paid. Judicial history The Board’s Decision7 The Board accepted SOCAN’s interpretation that making a work available to the public is a “communication”. According to this interpretation, two royalties are due when a work is published online. Firstly,  when the work is made available to the public online, and secondly, when it is streamed or downloaded. The Board’s Decision was largely based on its interpretation of Section 8 of the Treaty, according to which the act of making a work available requires separate protection by Member States and constitutes a separately compensable activity. Federal Court of Appeal’s Decision8 Entertainment Software Association, Apple Inc. and their Canadian subsidiaries (the “Broadcasters”) appealed the Board’s Decision before the Federal Court of Appeal (“FCA”). Relying on the reasonableness standard, the FCA overturned the Board’s Decision, affirming that a royalty is due only when the work is made available to the public on a server, not when a work is later streamed. The FCA also highlighted the uncertainty surrounding the applicable review standard in appeals following Vavilov9 in cases where administrative bodies and courts share concurrent first instance jurisdiction. SOCAN Decision The Supreme Court dismissed SOCAN’s appeal seeking the reinstatement of the Board’s Decision. Appellate standards of review The Supreme Court recognized that there are rare and exceptional circumstances that create a sixth category of issues to which the standard of correctness applies, namely concurrent first instance jurisdiction between courts and administrative bodies. Does section 2.4(1.1) of the Copyright Act entitle the holder of a copyright to the payment of a second royalty for each download or stream after the publication of a work on a server, making it publicly accessible? The copyright interests provided by section 3(1) of the Copyright Act The Supreme Court began its analysis by considering the three copyright interests protected by the Copyright Act, or in other words, namely the rights provided for in section 3(1): to produce or reproduce a work in any material form whatsoever; to perform the work in public; to publish an unpublished work. These three copyright interestsare distinct and a single activity can only engaged one of them. For example, the performance of a work is considered impermanent, allowing the author to retain greater control over their work than reproduction. Thus, “when an activity allows a user to experience a work for a limited period of time, the author’s performance right is engaged. A reproduction, by contrast, gives a user a durable copy of a work”.10 The Supreme Court also emphasized that an activity not involving one of the three copyright interests under section 3(1) of the Copyright Act or the author’s moral rights is not protected by the Copyright Act. Accordingly, no royalties should be paid in connection with such an activity. The Court reiterated its previous view that downloading a work and streaming a work are distinct protected activities, more precisely  downloading is considered reproduction, while streaming is considered performance. It also pointed out that downloading is not a communication under section 3(1)(f) of the Copyright Act, and that making a work available on a server is not a compensable activity distinct from the three copyright interests.11 Purpose of the Copyright Act and the principle of technological neutrality The Supreme Court criticized the Board’s Decision, opining that it violates the principle of technological neutrality, in particular by requiring users to pay additional fees to access online works. The purpose of the CMA was to “ensure that [the Copyright Act] remains technologically neutral”12 and thereby show, at the same time, Canada’s adherence to the principle of technological neutrality. The principle of technological neutrality is further explained by the Supreme Court: [63] The principle of technological neutrality holds that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted in a way that either favours or discriminates against any form of technology: CBC, at para. 66. Distributing functionally equivalent works through old or new technology should engage the same copyright interests: Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2 S.C.R. 326, at para. 43; CBC, at para. 72. For example, purchasing an album online should engage the same copyright interests, and attract the same quantum of royalties, as purchasing an album in a bricks-and-mortar store since these methods of purchasing the copyrighted works are functionally equivalent. What matters is what the user receives, not how the user receives it: ESA, at paras. 5-6 and 9; Rogers, at para. 29. In its summary to the CMA, which precedes the preamble, Parliament signalled its support for technological neutrality, by stating that the amendments were intended to “ensure that [the Copyright Act] remains technologically neutral”. According to the Supreme Court, the principle of technological neutrality must be observed in the light of the purpose of the Copyright Act, which does not exist solely for the protection of authors’ rights. Rather, the Act seeks to strike a balance between the rights of users and the rights of authors by facilitating the dissemination of artistic and intellectual works aiming to enrich society and inspire other creators. As a result, “[w]hat matters is what the user receives, not how the user receives it.”13 Thus, whether the reproduction or dissemination of the work takes place online or offline, the same copyright applies and leads to the same royalties. What is the correct interpretation of section 2.4(1.1) of the Copyright Act? Section 8 of the Treaty The Supreme Court reiterated that international treaties are relevant at the context stage of the statutory interpretation exercise and they can be considered without textual ambiguity in the statute.14 Moreover, wherethe text permits, it must be interpreted so as to comply with Canada’s treaty obligations, in accordance with the presumption of conformity, which states that a treaty cannot override clear legislative intent.15 The Court concluded that section 2.4(1.1) of the Copyright Act was intended to implement Canada’s obligations under Section 8 of the Treaty, and that the Treaty must therefore be taken into account in interpreting section 2.4(1.1) of the Act. Although Section 8 of the Treaty gives authors the right to control making works available to the public, it does not create a new and protected “making available” right that would be separately compensable. In such cases, there are no “distinct communications” or in other words, “distinct performances”.16 Section 8 of the Treaty creates only two obligations: “protect on demand transmissions; and give authors the right to control when and how their work is made available for downloading or streaming.”17 Canada has the freedom to choose how these two objectives are implemented in the Copyright Act, either through the right of distribution, the right of communication to the public, the combination of these rights, or a new right.18 The Supreme Court concluded that the Copyright Act gives effect to the obligations arising from Section 8 of the Treaty through a combination of the performance, reproduction, and authorization rights provided for in section 3(1) of the Copyright Act, and by respecting the principle of technological neutrality.19 Which interpretation of section 2.4(1.1) of the Copyright Act should be followed? The purpose of section 2.4(1.1) of the Copyright Act is to clarify the communication right in section 3(1)(f) of the Copyright Act by emphasizing its application to on-demand streaming. A single on-demand stream to a member of the public thus constitutes a “communication to the public” within the meaning of section 3(1)(f) of the Copyright Act.20 Section 2.4(1.1) of the Copyright Act states that a work is performed as soon as it is made available for on-demand streaming.21 Therefore, streaming is only a continuation of the performance of the work, which starts when the work is made available. Only one royalty should be collected in connection with this right: [100] This interpretation does not require treating the act of making the work available as a separate performance from the work’s subsequent transmission as a stream. The work is performed as soon as it is made available for on-demand streaming. At this point, a royalty is payable. If a user later experiences this performance by streaming the work, they are experiencing an already ongoing performance, not starting a new one. No separate royalty is payable at that point. The “act of ‘communication to the public’ in the form of ‘making available’ is completed by merely making a work available for on?demand transmission. If then the work is actually transmitted in that way, it does not mean that two acts are carried out: ‘making available’ and ‘communication to the public’. The entire act thus carried out will be regarded as communication to the public”: Ficsor, at p. 508. In other words, the making available of a stream and a stream by a user are both protected as a single performance — a single communication to the public. In summary, the Supreme Court stated and clarified the following in the SOCAN Decision: Section 3(1)(f) of the Copyright Act does not cover download of a work. Making a work available on a server and streaming the work both involve the same copyright interest to the performance of the work. As a result, only one royalty must be paid when a work is uploaded to a server and streamed. This interpretation of section 2.4(1.1) of the Copyright Act is consistent with Canada’s international obligations for copyright protection. In cases of concurrent first instance jurisdiction between courts and administrative bodies, the standard of correctness should be applied. As artificial intelligence works of art increase in amount and as a new market for digital visual art emerges, driven by the public’s attraction for the NFT exchanges, the principle of technological neutrality is becoming crucial for understanding the copyrights attached to these new digital objects and their related transactions. Fortunately, the issues surrounding digital music and its sharing and streaming have paved the way for rethinking copyright in a digital context. It should also be noted that in decentralized and unregulated digital NFT markets, intellectual property rights currently provide the only framework that is really respected by some market platforms and may call for some degree of intervention on the part of the market platforms’ owners. 2022 SCC 30. R.S.C. (1985), c. C-42 (hereinafter the “Copyright Act”). Can. T.S. 2014 No. 20, (hereinafter the “Treaty”). S.C. 2012, c. 20 (hereinafter the “CMA”). Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34. Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35. Copyright Board of Canada, 2017 CanLII 152886 (hereinafter the “Board’s Decision”). Federal Court of Appeal, 2020 FCA 100 (hereinafter the “FCA’s Decision”). Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. SOCAN Decision, par. 56. Ibid, para. 59. CMA, Preamble. SOCAN Decision, para. 70, emphasis added by the SCC. Ibid, paras. 44-45. Ibid, paras. 46-48. Ibid, paras. 74-75. Ibid, para. 88. Ibid, para. 90. Ibid, paras. 101 and 108. Ibid, paras. 91-94. Ibid, paras. 95 and 99-100.