Can a recording of a performance be made for the sole purpose of facilitating the broadcast of the performance?

A similar argument was made in Bishop v. Stevens. That case dealt with whether a TV station that had paid the appropriate royalties for the right to broadcast a performance of a musical work had also acquired the right to make an “ephemeral” recording of the performance for the sole purpose of facilitating the broadcast. It was held that the right to perform did not include the right to make a recording, albeit an “ephemeral” one made only for technical reasons. McLachlin J. held that “s. 3(1)(d) contains no mention of purpose” (p. 479): Interpretation of a statute must always begin with the ordinary meaning of the words used, and nothing in this section restricts its application to recordings made for the purpose of reproduction and sale. A recording may be made for any purpose, even one not prejudicial to the copyright holder, but if it is not authorized by the copyright holder then it is an infringement of his rights. [p. 480]