Re:Sound Not Soundly Defeated Just Yet

Re:Sound Not Soundly Defeated Just Yet

Brent Randall is a JD candidate at the University of Ottawa.

On September 8, 2011, the Supreme Court of Canada granted leave to appeal in the Federal Court of Appeal case of Re:Sound v. Motion Picture Theatre Associations of Canada, et al. The copyright case will be heard by Canada’s highest court along with four others on December 6-7, 2011.

Empowered by section 19 of the Canadian Copyright Act, Re:Sound is a copyright collective responsible for ensuring performers and makers of works are paid “equitable remuneration” for the performance in public or communication to the public by any transmission of their work.  In March of 2008, Re:Sound (at the time called the Neighbouring Rights Collective of Canada) filed two tariff proposals, tariff 7 and tariff 9.  Tariff 7 claimed royalties on the use of sound recordings in a movie by theatres, while tariff 9 claimed royalties on the use of sound recordings in programs broadcast by television providers.  The Motion Picture Theatre Associations of Canada (MPTAC) objected to tariff 7 while several broadcasting distribution undertakings including Rogers, Shaw and Bell objected to tariff 9.

On September 16, 2009, the Copyright Board of Canada decided whether Re:Sound was in fact entitled to collect such royalties.  The Board’s reasons were ultimately based on the interpretation of the Copyright Act’s section 2 definition of a sound recording, which states:

“sound recording” means a recording, fixed in any material form, consisting of sounds, whether or not a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies a cinematographic work.

Re:Sound argued that the purpose of the exclusion was to “consolidate rights in the visual features of a cinematographic production with the rights in the audio features of a cinematographic production” and together those rights would be protected as a “cinematographic work.” The objecting parties argued that a plain reading of the definition shows that sound recordings are excluded when part of any cinematographic work.

In order to effectively define “sound recording” for this decision, the Board had to first define the term “soundtrack” which is not included in section 2.  Re:Sound argued that a soundtrack was the “aggregate of sounds” and because of this any pre-existing sound recordings included in a soundtrack could still be deemed separate from it.  Re:Sound felt that not separating the recordings from the soundtrack would leave copyright holders vulnerable, as it would follow that unauthorized copying of a pre-existing song from a DVD would not violate the copyright in the recording, while copying the same song from a soundtrack released on CD would.   The objecting parties, using their plain meaning argument, agreed that the sound recording would not change character and lose copyright protection if it was part of a soundtrack, but that once the owner of the movie or program is allowed to exploit the work, they should be allowed to do so without worrying about a veto from those who contributed sound recordings (for example, a contributor may attempt to prevent rental of the movie by citing ss. 15(c) or 18(c)).

The Copyright Board ultimately agreed with the objecting parties, stating that “neither the soundtrack nor any of its constituent parts are a ‘sound recording’ when they are communicated or performed with [a] program or movie.”

When Re:Sound applied to the Federal Court of Appeal for judicial review of the decision, it was rejected on February 25, 2011.  Re:Sound argued that the Copyright Board was wrong in its definition of “sound recording” as excluding individual components of a soundtrack that may be pre-existing recordings.  Trudel J.A., writing for the Court, stated that the Board was correct in the conclusion it reached, although commented on some issues.

First, the Court re-asserted what the Board had already stated, and said that Re:Sound’s concerns about the protection of rights of performers and makers when their work is disseminated without permission or extracted from a DVD were incorrect.  The Court noted that under section 17 of the Copyright Act, unauthorized use of performances in cinematographic works is illegal.  Furthermore, if a song were to be extracted from a DVD, performers and makers would be protected in the same way as if they had a standalone sound recording.

Second, the Court made it clear that comparative law arguments can only extend as far as their similarity to current Canadian legislation.  Re:Sound had relied on an argument based on cases from Australia and the UK, which were found to be baseless due to their fundamental differences from Canadian copyright law in this area.

Finally, the Court addressed Re:Sound’s argument that they should be entitled to a tariff for live-to-air broadcasts.  This argument was characterized as a “limited ground” by Trudel J.A., but ultimately did not strengthen Re:Sound’s case, since the argument was never raised with the Copyright Board.  As such, there could be no judicial review of the Board not addressing an issue never brought before them.

It will be interesting to see how this case develops at the Supreme Court of Canada in December, and how it is impacted by the other copyright cases it is being heard with.  While it seems that Re:Sound’s arguments were dealt with quite conclusively, apparently something more is left to be said.  Regardless of how these cases develop, all parties with an interest in copyright law will be closely watching the Supreme Court of Canada in the next few months.