What is the current state of the law on “ephemeral” recordings?

In Bishops v. Stevens, 1990 CanLII 75 (SCC), [1990] 2 S.C.R. 467, the issue was whether the right to make “ephemeral” recordings fell within the scope of copyright protection under the Copyright Act. McLachlin J. (as she then was) identified the issue in the case as arising because “the introduction of new technology presented a situation not contemplated by the drafters of the original Canadian Copyright Act in the 1920's.” (at p. 473) She concluded that ephemeral recordings did not fall within the right to broadcast a performance under the Act. Her comments, at p. 484-5, are apt in the case at bar: Neither the wording of the Act, nor the object and purpose of the Act, nor practical necessity support an interpretation of these sections which would place ephemeral recordings within the introductory paragraph to s. 3(1) rather than s. 3(1)(d). On the contrary, policy considerations suggest that if such a change is to be made to the Act it should be made by the legislature, and not by a forced interpretation.