Copyright Board Affirms What A Sound Recording Is

When is a sound recording not a sound recording?

This is the nut of a high-stakes argument that pitted a collective of record labels and recording artists against a phalanx of blue-chip lawyers representing the interests of everyone from the CBC to Turner Broadcasting. Unsurprisingly, the two sides were arguing over money. Potentially, millions of dollars a year. Yesterday, the Copyright Board reached its ruling: the record companies lost.

An application to apply a new tarrif to collect monies from TV and cinema operators by the Neighbouring Rights Collective of Canada (NRCC) has been vetoed by the Copyright Board on the basis of interpretation of what constitutes a sound recording.

The NRCC collects money for record labels and performers for performances embedded in sound recordings, the so-called Neighbouring Right to the Performing Right which covers authors, songwriters and composers who collectively are represented by SOCAN.

With the sharp reduction in CD sales, the mechanical income collected by record companies and artists who make records has plunged by as much as 50% over the past decade, and record companies have been seeking out new ways to increase revenue from users of their copyrights. The NRCC tarrif application could be viewed as a way of seeking relief from plunging income, but the bid was a long-shot given the legal definition of what a sound recoding is and what it is not. The Copyright Board rejected the application on the basis of legal definition as defined by the ACt.

The Copyright Act as it stands today specifically exempts the definition of a sound recording embodied in a “cinematographic” work. The Act clearly states that a “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.

In making its decision, the Copyright Board stated that when a television program is broadcast or a movie is shown, all sounds embodied in the soundtrack, whether or not they come from a pre-existing sound recording, are communicated or performed. However, neither the soundtrack nor any of its constituent parts are a “sound recording” when they are communicated.

The NRCC application was challenged by an objectors list that included the Motion Picture Theatre Associations of Canada (MPTAC), Rogers Communications, Shaw Communications, Bell ExpressVu, Cogeco Cable, Eastlink, Quebecor Media and TELUS, Turner Broadcasting System, the Canadian Broadcasting Corporation, Maple Leaf Sports & Entertainment2 and the Canadian Association of Broadcasters (CAB),

The reasoning behind the Copyright Board decision is both simple and complex. The nut of the decision comes down to interpreting what is and isn’t a sound recording. More complex arguments arise from the interpretation of the wording. Below, extracts from the board’s decision. The entire document can be found here:

EXCERPT FROM DECISION: The issue is, when is a pre-existing sound recording that is subsequently incorporated into a soundtrack no longer a sound recording? A sound recording “excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work”. The meaning of the exclusion must be determined by the construction of the defined term “sound recording” and the undefined term “soundtrack” as it relates to preexisting sound recordings.

We agree with the CAB that the exclusion can affect pre-existing sound recordings incorporated into a soundtrack in one of only three ways. First, the recording is no longer entitled to any protection as a sound recording.

Second, the recording remains a sound recording except when it is part of a soundtrack that accompanies a movie.

Third, the recording remains a sound recording even when it is part of a soundtrack that accompanies a movie. NRCC defends the third interpretation; the Objectors argue for the second. No one proposes the first.

NRCC frames the issue as whether the definition of sound recording excludes each sound or group of sounds and each pre-existing sound recording embodied in a soundtrack which accompanies a cinematographic work, or whether it excludes the aggregate of the compiled sounds.

NRCC contends that a plain meaning of the word “soundtrack” as used in the Act refers to the aggregate of the sounds embodied as a compilation of a soundtrack and as a result the sounds of a pre-existing sound recording which is part of the compilation, cannot be part of or referred to as the soundtrack. That meaning must be determined by reading the statute as a whole.

NRCC argues that what is excluded from the definition of “sound recording” is the soundtrack as a whole, the aggregate of the sounds, not each sound or group of sounds, and not a pre-existing sound recording. The preexisting sound recording that is subsequently incorporated into a movie soundtrack nevertheless remains a sound recording even when the soundtrack accompanies the movie. In its submission, to find otherwise leads to absurd results. For example, some of the rights in a preexisting sound recording could be extinguished without the consent of the owner.

The definition is intended to ensure that a soundtrack is treated as part of a movie, not to limit or reduce the copyright protection in pre-existing sound recordings.

Although the Act does not define what a soundtrack is, a decision maker can, on a plain reading of the Act, determine what it is. A sound recording is “a recording, fixed in any material form, consisting of sounds”. A movie is a work whether or not accompanied by a soundtrack.

But for the exclusion, a soundtrack would be a sound recording. If it was not, there would be no need for the exclusion. When it is joined with the visual elements of a movie or television program, the soundtrack is part of the movie or program. Otherwise, it is a sound recording.