CMRRA will be appearing before the Supreme Court of Canada this month, as an intervener in Canadian Broadcasting Corporation v Society for Reproduction Rights of Authors, Composers and Publishers in Canada. The Supreme Court will be hearing submissions on whether royalties are owed for the reproduction of musical works that occurs in the course of making copies of audiovisual programs for television broadcast. We look forward to this valuable opportunity to offer perspective to Canada’s highest court as it considers an issue of central importance to music rightsholders.
Before broadcasting audiovisual programs to viewers, the Canadian Broadcasting Corporation (CBC) makes internal copies to facilitate broadcasting, including by automated computer processes. These internal copies allow the broadcaster to more easily access and utilize the programs, and their creation necessarily involves reproducing the music that is itself contained in the programs. The CBC is currently required to pay royalties for the reproduction of music contained in these program copies to the Society for Reproduction Rights of Authors, Composers and Publishers in Canada Inc. (SODRAC) pursuant to a decision by the Copyright Board of Canada (the Board).
The CBC argues that it should not be required to pay music royalties for these reproductions of music. Meanwhile, SODRAC maintains that rightsholders should be compensated for all reproductions of their works, including copies made in order to allow the CBC to more easily broadcast audiovisual programs to viewers.
A central aspect of the dispute between the CBC and SODRAC is the proper interpretation and application of the principle of “technological neutrality.” In their 2012 decision in Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada (ESA), a majority of the Supreme Court of Canada held that technological neutrality requires that the Copyright Act must “apply equally between traditional and more technologically advanced forms of the same media.” The Court explained that the principle means that the law must be interpreted “in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user.” In the current appeal, the issue is whether the principle of technological neutrality means that royalties cannot be collected for reproductions of audiovisual programs containing musical works made for the purposes of facilitating television broadcasting.
The Supreme Court’s 1990 decision in Bishop v Stevens enshrined the principle that under Canadian copyright law there are separate and distinctly protectable rights to reproduce and to perform a protected work. In that case the Court held that royalties were owed for reproductions of musical works by broadcasters, in addition to royalties paid for the broadcast performance of such works. One of the issues before the Supreme Court this month is whether the 2012 decision in ESA means that the foundational 1990 copyright decision by the Supreme Court in Bishop v Stevens is no longer the law in Canada. CMRRA believes that the fundamental rights of music copyright owners have not changed in the time since Bishop v Stevens was decided, despite what CBC argues about technological neutrality.
Our perspective remains the same as it has always been: where the right to reproduce songs is being used, and the users benefit from it, that use should be licensed and royalties should be paid to the owners of those songs. It’s simply a matter of fairness. The owners of the reproduction right for musical works are entitled to be compensated for copies of their works, including those made to facilitate television broadcasting.
CMRRA is appearing before the Supreme Court as an intervener to provide insight and expertise on the different rights set out for musical works under the Copyright Act, and to address what we believe is the proper interpretation and application of technological neutrality in this context. CMRRA is uniquely positioned to offer guidance on this matter because we represent the vast majority of music copyright owners who works are used in Canada. We want to ensure that the rights of our music publisher clients are promoted before the Supreme Court as it considers the important issue of technological neutrality.
CMRRA will be appearing jointly with the Canadian Music Publishers Association (CMPA) and the International Confederation of Music Publishers (ICMP). A number of other rights organizations will be intervening as well, including the Association québécoise de l’industrie du disque, du spectacle et de la vidéo (ADISQ), the Canadian Council of Music Industry Associations (CCMIA), the Canadian Independent Music Association (CIMA), the International Federation of Phonographic Industry (IFPI), and Music Canada. CMRRA is proud to advocate on behalf of music rightsholders to ensure that they are justly compensated for the reproduction of their works, as protected under the Copyright Act. We will keep you posted with more information after the hearing!