When isn’t a sound recording a sound recording?
p2pnet news view Music | Movies:- “Earlier this year,” blogs Ottawa copyright lawyer Howard Knopf on Excess Copyright, “I posted about the NRCC’s attempt to get a tariff on the use of sound recordings as embodied in the soundtracks of movies and as performed in theatres and on TV (here and here).
“It will be recalled that the Copyright Act defines ’sound recording’ as: “sound recording” means a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work; (Emphasis added)
He goes on »»»
The definition of ‘cinematographic work’ is this:
cinematographic work” includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack.
Sections 15, 17, 18 and 19 are also pertinent.
The Copyright Board has just issued its decision on a threshold legal question as to whether NRCC (the neighbouring rights collective – of which there is no counterpart in the USA) is entitled to seek a tariff related to:
the performance in public or the communication to the public by telecommunication, in Canada, of published sound recordings embodying musical works and performers` performances of such works.
The NRCC made a rather strained argument heavily dependent on foreign and mostly Australian case law that, despite the clear wording of the statute and the legislative history, it is enlisted to a tariff for the above uses.
Today, the Board came to the predicable and correct conclusion along the lines I had suggested in my earlier blogs. It ruled against the NRCC. I believe that the Board got this right and did so decisively, if not particularly quickly. The tariff was published on May 31, 2008 and the hearing on this issue took place on May 7, 2009. Here’s the Board’s well written and well reasoned decision.
I have little doubt, however, that the NRCC will seek judicial review. This time, unlike the “iPod levy‘ case where the Board wanted to proceed with a tariff hearing in spite of the clear wording of the statute and a previous Federal Court of Appeal decision on the same issue, I believe that the Board will be upheld in any judicial review.
It is useful for the Board to dispose of as many threshold questions as possible to avoid unnecessary hearings, since Board hearings are so expensive and stretch out over such a long time. It is good to see that the Board is prepared, when appropriate, to decline to proceed with a proposed tariff that clearly cannot be legally justified.
Knopf is an Ottawa-based copyright lawyer who’s been lead counsel on legal challenges both at the Copyright Board and in the Courts against the excesses of the music industry establishment.
Excess Copyright – When is a Sound Recording Not a Sound Recording?, September 16, 2009
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September 17th, 2009 at 11:09 am
Thank you Howard for the news. That’s one less cash grab to worry about, where we know the funds won’t make it to the artists.