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Canadian industry responds as Supreme Court rules on various copyright cases

By | Published on Monday 16 July 2012


The Supreme Court Of Canada ruled on a bunch of copyright cases last week, setting a number of precedents of relevance to rights owners, most swinging in favour of the users rather than owners of copyrights.

As previously reported, Canada’s Supreme Court chose to review a number of outstanding copyright cases in one go, and held oral hearings on all of them last December. The legal wranglings ran concurrent to ongoing efforts to reform Canadian copyright law – efforts that resulted in C-11, a new bit of copyright legislation passed by the country’s parliament last month.

However, many of the issues being considered by the Supreme Court were not dealt with by that copyright reform act – and some rights owners might argue that last week’s judicial rulings show that further legislative reform is now needed. Though consumer rights groups and tech companies might argue last week’s judicial decisions show Canada’s copyright system is now operating just fine.

Various kinds of copyrights were involved in the cases being considered by the top court last week, though three disputes focused specifically on music right issues: 30 second preview clips on download stores, the song performance right in progressive downloads, and the recording performance right in TV programmes and films.

Canada’s publishing rights collecting society SOCAN has long argued that a performance right should be paid to song publishers whenever a 30 second preview clip is played via a download store like iTunes. Digital music operators argue that when consumers listen to such a clip, they are doing research to inform a purchase, and such personal research is exempt from copyright under the country’s fair dealing provisions.

SOCAN did not concur. According to the Toronto Star, it told the court that “since the evidence showed that each user, on average, listened to ten previews before purchasing a musical work for download, the overall amount of time spent listening to previews was so large that the dealing was unfair”. It added that there were plenty of other ways that consumers could research music before making a purchase, including advertising, blurbs, reviews.

And when consumer rights groups argued that adding a performance royalty to such clips would increase the price of downloads in Canada, SOCAN countered that there was little difference in MP3 pricing in countries where such a performing royalty is due versus those where it is not. Nevertheless, the court said that no royalty was due to songwriters and music publishers on 30 second clips provided by download stores.

SOCAN also claimed that a performance royalty was due on the download itself, when one of its members’ songs was sold via an iTunes-style platform, and indeed it has been collecting on this basis in Canada for sometime. However, again the Supreme Court judges sided with the digital firms, saying that while a mechanical royalty is due on downloads, a separate performing royalty is not (in Canada, unlike the UK, performing and mechanical royalties due to songwriters and publishers are not collected by the same organisation). Though the court did confirm performance royalties are due on streaming-based digital services.

Responding, SOCAN CEO Eric Baptiste told CMU: “The Supreme Court Of Canada has reconfirmed the online rights of music creators and publishers, and we believe that the right final decision has been made in the case of internet streaming. We are, however, disappointed that the court chose not to uphold the rights of our members in all of its decisions. We will continue to fight for the legal rights of our members to be compensated fairly for their work”.

Elsewhere in the pile of Supreme Court rulings was one involving Canada’s recording rights society, the Re:Sound Music Licensing Company, which was trying to convince the court to reward the owners and creators of sound recording copyrights (as opposed to the song rights SOCAN represents) with a performance right when their work is used in TV programmes or films – a right that exists in many other territories, including the UK, but not in Canada.

But, alas, Re:Sound did not prevail, leading the society to call for a legislative change on this issue, noting what was agreed at that previously reported recent meeting of the World Intellectual Property Organisation in Beijing regards performer rights.

Re:Sound President Ian MacKay told CMU: “I cannot say we are not disappointed by today’s ruling. It seems incongruous that songwriters should be compensated when their work is broadcast on TV and in motion pictures, while the actual performers of the recordings are not. That being said it is the Supreme Court’s role to interpret the law as it exists, not as it should be. Unfortunately, Canada’s copyright law has today been found to put Canadian recording artists and record companies at a disadvantage in the international marketplace”.