Canada Supremes rule on IP

July 12, 2012 5:36 PM

Canada's Supreme Court has ruled on 5 copyright-related issues.
Internet providers do not have to pay copyright fees when their consumers download or preview music, and teachers don't have to pay fees when they photocopy copyrighted materials for their students.

Obvious (from here): Movie theatres shouldn't be charged for the music that's part of a soundtrack.
Oddity: downloading is not "public", streaming is?

posted by Twang (25 comments total)

Thanks for posting this - every school in Canada just gained a thousands of dollars a year.
posted by not_that_epiphanius at 5:42 PM on July 12, 2012 [2 favorites]

Yeah, as someone who tangentially knows the occasional teacher the photocopying ruling seems like the most interesting one of the bunch.
posted by figurant at 5:45 PM on July 12, 2012

Movie theatres shouldn't be charged for the music that's part of a soundtrack.

Huh? Why was this at issue? Was someone suing a theatre asking for royalties for a soundtrack to a movie they were screening?

downloading is not "public", streaming is?

Makes perfect sense to me.
posted by dobbs at 5:49 PM on July 12, 2012

Cool! I've always wanted to set up my own ISP!
posted by XMLicious at 5:52 PM on July 12, 2012 [1 favorite]

SOCAN was collecting money from movie theatres under the same reasoning that they collect from bars or restaurants that play music. It would seem this ruling says the theatres don't have to pay.
posted by RobotHero at 6:11 PM on July 12, 2012 [1 favorite]

SOCAN was collecting money from movie theatres under the same reasoning that they collect from bars or restaurants that play music.

Good lord. Bars and restaurants can do their business without music. WTF did SOCAN expect movie theaters to do? Run movies with the sound off? Sstudios and production companies pay royalties for the songs in the soundtrack already. What SOCAN was doing is double-dipping.
posted by Thorzdad at 6:17 PM on July 12, 2012 [1 favorite]

WTF did SOCAN expect movie theaters to do? Run movies with the sound off?

No, Mr. Thorzdad. They expect them to pay.
posted by no regrets, coyote at 6:24 PM on July 12, 2012 [23 favorites]

SOCAN was collecting money from movie theatres under the same reasoning that they collect from bars or restaurants that play music.

Wait, are you talking about the music you hear in the lobby or theatre *before* the movie starts? 'Cause if so then that makes sense (if you think the bar thing makes sense), but the wording here makes it sound like music that's on during the music--the soundtrack.
posted by dobbs at 6:34 PM on July 12, 2012

This is a pretty progressive move. Read a random musician person commenting on the cbc.ca article this morning; they weren't getting much from SOCAN anyway, their particular band makes most of its money from doing soundtracks for advertising, and were pretty pragmatic about more listeners = more who might buy their albums/go to their shows. Apparently, labels make >10x what the artists do per "sale."

Anyone have any data on how much SOCAN pays out to artists and how much "overhead" eats up royalty revenue?
posted by porpoise at 6:57 PM on July 12, 2012 [1 favorite]

From the article:

The court ruled that a “soundtrack” that accompanies a movie is not the same as the Copyright Board’s definition of a “sound recording” because the soundtrack is meant to be part of the movie and includes pre‑existing sound recordings.

So yes, they were trying to charge separately for film soundtracks. This article has a lot more detail about what the decisions actually mean.

I don't know anything really about Canadian copyright law, but the issue seems to be that copyright collecting agencies were collecting tariffs (which look like some kind of statutory charge, like the taxes on blank recording media) from people who had already paid royalties or were using copyrighted material in ways covered by fair dealing. Apparently the agencies were also trying to collect money from ISPs for transmitting music to people who had paid for it. Which is ridiculous, so it sounds like a good decision.
posted by A Thousand Baited Hooks at 7:00 PM on July 12, 2012

Anyone have any data on how much SOCAN pays out to artists and how much "overhead" eats up royalty revenue?

SOCAN have very nice offices, located in prime locations. What are you getting at?
posted by philip-random at 7:00 PM on July 12, 2012

Ah SOCAN. The same bunch who dreamed up the scheme in which they demand newlyweds in Canada to fork over a royalty for playing DJd music at a wedding. And extra if there is dancing. Yes. You read that right.

This is a wise decision by the court: it applies common sense in the education realm, leaves the door open for creators to be paid for their work, but sends the industry back to the drawing room rather than letting them get away with implementing an entirely unpractical nickel-and-diming of consumers.
posted by runningdogofcapitalism at 7:36 PM on July 12, 2012

I'm still trying to get my mind to accept that SOCAN thought that movie theatres should pay for the movie music in addition to the fees for showing the film. And that they would win their case. Mind you, these are the people who think that playing a radio in a bar equals theft of intellectual property.
posted by lesbiassparrow at 7:42 PM on July 12, 2012 [1 favorite]

Interesting. European performing rights organizations still collect performance royalties for music use in cinema exhibition; I wonder if this decision is going to start rolling that back as well. And I'm very happy that downloading is not considered a performance here. I have always found that argument stupid - downloading is akin to delivery, streaming is akin to a radio play.

And for everyone incredulous that a movie theater would have to pay these royalties even after the production company has paid for the synch rights - television stations/networks have to pay performance royalties if they broadcast that movie (either via yearly blanket fees to PROs or by direct payment to publishers based on number of airplays).
posted by queensissy at 9:07 PM on July 12, 2012

♪ Two percent for looking in the mirror twice... ♫
posted by XMLicious at 9:21 PM on July 12, 2012 [1 favorite]

downloading is not "public", streaming is?

Spotify is never, ever coming to Canada.
posted by bonehead at 9:30 PM on July 12, 2012

The downloading / streaming distinction isn't much of an oddity (except for the fact that the SCC got tech IP right..) to me. If you're downloading from, say, iTunes, then nobody should be owing a licencing fee, the same way that when you buy a cd nobody owes.

But when CBC3 has a "first-listen" of the new ___ album, then the tariff kicks in. They're saying download = purchase/sharing, streaming=playback. It's not like the streaming players are going to switch to a download model to circumvent that - they lose all their eyeballs if they don't have you on their site.

More thoughts in the morning, if the Lexum is back up. BTW, here are the actual cases (I haven't read them as the website is doing scheduled maintenance):

1. Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright).

2. Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada

3. Re:Sound v. Motion Picture Theatre Associations of Canada

4. Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada

5. Society of Composers, Authors and Music Publishers of Canada v. Bell Canada

This comment brought to you by the Foundation for Adding Interesting Legal Decisions.
posted by Lemurrhea at 9:43 PM on July 12, 2012 [4 favorites]

Back in the day I seem to recall that the hefty levees on blank hard drives (I.e., in iPods etc) were going into a fund for creators but no cash had ever been paid out; is this still the case?
posted by docgonzo at 9:47 PM on July 12, 2012

lesbiassparrow writes "I'm still trying to get my mind to accept that SOCAN thought that movie theatres should pay for the movie music in addition to the fees for showing the film. And that they would win their case. Mind you, these are the people who think that playing a radio in a bar equals theft of intellectual property."

SOCAN is essentially a protection racket laid over extortion. Friend of mine owns a restaurant (well The Restaurant) in a little one horse town. They've had a few go arounds with SOCAN. At one point they were paying grudgingly because they had a jukebox. Then they expanded to a patio and SOCAN wanted to double teh fee or something because patio patrons could here the jukebox through the breeze way and SOCAN somehow figured that meant their were now two establishments playing music for the public. Friend countered by loading the jukebox exclusively with bands not receiving SOCAN royalties (I can't remember if that was because they weren't signed with a label or simply didn't receive any checks because they had no sales/presence); went to court and lost. So they removed the jukebox. SOCAN still tried to extort their fees because "a patron might sing a song where others could hear or they might have their headphones turned up so others could hear". I can't remember if they were successful in charging the fee.
posted by Mitheral at 10:41 PM on July 12, 2012 [4 favorites]

SOCAN "about royalties" page for artists has some explanations of royalty calculations and a report on payments.

SOCAN responds to the Supreme Court ruling.
posted by chapps at 10:51 PM on July 12, 2012

Good lord. Bars and restaurants can do their business without music. WTF did SOCAN expect movie theaters to do? Run movies with the sound off? Sstudios and production companies pay royalties for the songs in the soundtrack already. What SOCAN was doing is double-dipping.

It's actually not that bizarre, if you think about it. Music rights are all about the right to make public/publish a piece of music. So obviously the movie makers have to pay for the right to use that music in their movie and equally obviously if you buy a movie to watch at home, you don't need to pay any rights other than what you paid for your dvd, as home viewing by definition is not a publication.

Cinemas are a grey area; if you squint and look at it from the p.o.v. of somebody holding music rights, you can pretend it's a new publication, in the same way a broadcast on television of the movie would be. On the other hand, from the p.o.v. of the theatre owners, it clearly is not, as these rights have already been paid for when the movie was made and quite obviously if you make a movie but can't show it in the cinema, you haven't made it public and hence don't own any rights anyway. The Canadian supreme court decided in favour of the latter viewpoint, fortunately.

For copyright holders of any stripe, maximising the money they can get out of the rights they hold and to argue for a maximalist reading of the law is of course their whole business model, glad to see that in these cases, they lost.
posted by MartinWisse at 11:29 PM on July 12, 2012

SOCAN still tried to extort their fees because "a patron might sing a song where others could hear or they might have their headphones turned up so others could hear".

What the motherfucking hell? I....it.....uh.....huh?
posted by VTX at 7:37 AM on July 13, 2012 [1 favorite]

Seriously. To understand Socan, you have to see their offices. Very nice. Extremely well located. Their overhead has got to be very high. These guys (and gals) need to keep finding new sources of revenue in order to maintain the comfort to which they've become accustomed. So as was suggested earlier, the extortion racket analogy applies.

The f***ed up part is, they do have a function. Getting revenue to creators is a damned important task, but (as I suggested earlier) I've never known a musician who had a work space remotely as nice as Socan's.

I don't know Bryan Adams, Nickelback, Celine Dion, Shania Twain ...
posted by philip-random at 9:23 AM on July 13, 2012

philip-random, you list all Canadian musicians, but SOCAN also has reciprocal agreements with similar orgs in other countries, like ASCAP in the States, which means they are also collecting for foreign musicians.
posted by RobotHero at 2:28 PM on July 13, 2012

they are also collecting for foreign musicians.

Now its clear where all the Capos have gone these days.
posted by Twang at 4:13 PM on July 14, 2012