What Do You Need to Understand About Copyright?

In one of our previous articles on remuneration, we briefly discussed the importance of copyrights. In the context of the Copyright Act of Canada, it encompasses all copyrights specific to music.

To begin, here are some broad guidelines for understanding The Copyright Act of Canada:

• The CMRRA states that “copyright is a form of property.”
• Copibec explains that “copyright is one of the five traditional areas of intellectual property (IP) law. 
• Éducaloi mentions that “in Canada, The Copyright Act has two main objectives: to protect existing works while encouraging the creation of new works.
• The Canadian Intellectual Property Office specifies that “copyright automatically protects the original work once it is created in a fixed form.”

The Copyright Act was passed in Canada in 1924. One year later, the first Canadian performing rights organisation for musical, literary, and dramatic works in Canada, the CPRS (Canadian Performing Rights Society) was established. In 1989, the Copyright Board was officially created in its current form. The Board’s mandate evolved over time and it was to the Board that the collectives negotiated the royalty rates. In 1990, SOCAN was formed through the merger of CAPAC (Composers, Authors and Publishers Association of Canada) and PROCAN (Performing Rights Organisation of Canada). 

To summarise the ecosystem:

• The Copyright Act sets out the mandate of:
• the Copyright Board, which approves tariffs, which are defended by: 
• PROs, CMOs, and MROs that represent:
• authors, composers, and producers who own copyright.

Basically, copyright protects the musical work and subsequently the performance (performer), the sound recording (producer), and the communication signal (broadcaster).

 In Canada, there are two sets of rights: 

• Economic rights “are the rights that allow a work to be reproduced, translated, published, communicated to the public, etc.” (Éducaloi). They are also the rights that allow the author of a work “to obtain fair remuneration following the exploitation of their musical work. These rights may be assigned or licensed” (Artère). 
• Moral rights give the author “the right to the respect of their name, their quality and their work” (Ministry of Culture). These rights cannot be transferred. Moral rights appear in the Berne Convention, which is one of the fundamental treaties for international copyright.

Therefore, a songwriter (rights holder) has the exclusive right to authorise:

• translation 
• adaptation
• the public performance of musical works
• communication to the public
• broadcasting
• reproduction
• the use of their work in an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public their audiovisual work with music.

Copyright is complex and based on a structure that dates from another era. In order to properly represent each of the rights, several PROs, CMOs, and MROs are mandated to represent the interests of Canadian artists. It is important to note that membership in an organisation does not depend on the citizenship of the rights holder. It is up to the rights holder to decide which organisation best suits their needs. An independent, emerging artist with the role of songwriter, producer, and performer will need to join several societies and register their musical works and sound recordings to each.

Traditionally, the registration of the musical work is the basis of the commercialisation process. Becoming a member of a music rights organisation is one of the first steps to be taken in order to ensure payment of all royalties from musical works.

For example, upon joining SOCAN, the songwriter will be assigned an IPI (Interested Parties Information). “The IPI is an international identification number assigned to songwriters and publishers that allows for the individual identification of the rights holders of musical works” (SACEM). When songwriters prepare their registration of musical works, they will have to provide their IPI, the IPI of the other rights holders, and the shares of each in the musical work.

For the songwriter, membership in a performing rights organisation such as SOCAN is necessary in order for it to administer:

• their public performance rights
• their rights to remuneration for private copying

SOCAN-DR

• their reproduction rights (mechanical)

When the musical work is fixed to audio support, Soproq explains that “in Canada, the Copyright Act grants the original producer of a sound recording, or a music video, exclusive rights in the recording, namely the rights to publish, reproduce or rent it. These rights may subsequently be transferred to the owner of the master tape of the recording. Thereafter, “the owner of copyright in a published sound recording may not authorise or prohibit its performance in public or its communication to the public by telecommunication.

In return for such use, he is entitled to receive “equitable remuneration” for such performance or communication to the public. On the sound recording side, “neighbouring rights” is the term used to refer to copyright, which therefore includes public performance and reproduction. The sharing of royalties is automatically 50/50 for the producer and the performer. Of the performer’s 50% share, in Canada, 80% goes to the main artist and 20% to the featured artist. 

For the producing artist, membership in a CMO such as Soproq is necessary in order to collect:

• their right to equitable remuneration – remuneration for the performance of sound recordings in public or the communication of sound recordings to the public by telecommunication,
• their right related to the private copying regime, and
• their reproduction right to receive royalties when Soproq authorises music services to make reproductions of the sound recordings in its repertoire for broadcast purposes,
• their digital performance royalties.

For the performer, membership in a CMO such as Artisti is necessary in order to collect :

• their right to equitable remuneration,
• their right to remuneration under the private copying regime,
• their exclusive right of reproduction and,
• their exclusive right of fixation and exploitation, 
• their digital performance royalties (SoundExchange).

So, what does an independent and emerging artist really need to understand about copyright? If an artist wants to get fair remuneration from the exploitation of their musical works and receive equitable remuneration, they must register their musical creations to the societies that issue the licences and collect the royalties. When their music is registered to the organisations, they are identified with metadata such as ISWC and ISRC. As an artist’s musical career evolves, other players will be interested in their repertoire and catalogue. For example, when an opportunity arises to synchronise to an audiovisual production, stakeholders will need to know who the rights holders are and the metadata will be required to facilitate the necessary licensing. In short, for an independent and emerging artist, an understanding of copyright and how it is administered is necessary to ensure a successful artistic career.