The Supreme Court found that Internet streaming of musical works falls within the exclusive right in s. 3(1)(f) of the Copyright Act "in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication." (In light of ESA, this means that Internet streaming does not result in the "production or reproduction" of the work.)
The appellants, who provided online music services, sought to overturn certification of a Copyright Board tariff that would have imposed fees on the basis that the appellants were making use of the respondent's s. 3(1)(f) rights. In accordance with its decision in ESA, the Court granted the appeal in respect of the appellants' download services.
The Court denied the appeal in respect of the streaming services on the basis that streaming is analogous to more traditional methods of communication to the public by telecommunication, such as radio and television broadcasts. While Internet streaming involves many private (i.e. point-to-point) transmissions, the combination of all such transmissions must be regarded as communication to the public.