SUPREME COURT SAYS BROADCAST RIGHT DOESN`T

SUPREME COURT SAYS BROADCAST RIGHT DOESN'T INCLUDE RIGHT TO PRERECORD
by
Bob H. Sotiriadis
LEGER ROBIC RICHARD, Lawyers
ROBIC, Patent & Trademark Agents
Centre CDP Capital
1001 Square-Victoria - Bloc E – 8th Floor
Montreal, Quebec, Canada H2Z 2B7
Tel.: (514) 987 6242 - Fax: (514) 845 7874
www.robic.ca - [email protected]
The right to broadcast a musical work does not includce the incidental right
to make a pre-broadcast "ephemeral" recording of the work, the Supreme
Court of Canada held recently. The ruling establishes the principle that, in the
absence of a clear provision in the Canadian Copyright Act, a composer or
lyricist does not implicitly consent to the making of ephemeral recordings by
granting a licence
to broadcast a performance of the work. (Télé-Métropole v. Michael Bishop,
August 16,1990).
Télé-Métropole is a Montreal-based television broad-casting company.
Michael Bishop is a musician who composed the words to the song "Stay". He
sent a copy of the song to a British performing rights society (PRS), which was
associated with a Canadian PRS. The Canadian PRS was legally entitled to
collect fees for performing rights (i.e., broadcasting) and to pass them on to
the copyright
holder.
A singer named Martin Stevens (also known as Marcel Prud'homme), after
trying unsuccessfully to obtain rights in the song from Bishop, recorded the
song and arranged to appear on certain popular television shows.
Télé-Métropole broadcast two such performances, and used a pre-recorded
tape in each case. However, the broadcaster did not know that Stevens was
not the author of the song. Furthermore, Télé-Métropole paid the appropriate
performing rights fees to the Canadian PRS for the broadcast. These fees were
passed on to the British PRS and then to Bishop himself.
Additional Payment Sought. Bishop was, therefore, paid for the broadcast or
performance of his work, but not for the recording. Acting through a
Canadian Musical Reproduction Rights Agency, Bishop sued Télé-Métropole,
alleging the infringement of his copyright in the song.
His basic assertion was that, although the performing rights for the song had
been properly paid for, Télé-Métropole had infringed his copyright by
recording the song without first obtaining his permission. Notwithstanding that
the recording was intended to be used only to facilitate the broadcasts, for
which Télé-Métropole paid the performance fees, Bishop insisted on the
payment of what amounted to additional fees with respect to the recording.
The broadcaster replied that performance rights in the broadcasting domain
include the right to make ephemeral recordings to facilitate the broadcast or
performance. It invited the court to give this interpretation to the Act in light
of technological advances in the industry that were not contemplated by the
drafters of the original Act some 70 years earlier.
Unlike a "true" recording, which is made in order to be reproduced and widely
propagated, Télé-Métropole argued that an "ephemeral" recording is made
only with a view to reaching the same audience that would have been
reached by a live broadcast or performance. Since the vast majority of
television broadcasts are pre-recorded, Télé-Métropole urged that the right to
pre-record is an accessory to the right to broadcast or perform, and that an
author who grants a license to broadcast his or her work impliedly consents to
the making of ephemeral recordings.
In its judgment, the court was obliged to comment on the distinction
between two rights granted under the Act: the right to record and the right to
perform. Their separate enumeration in the Act led the court to conclude that
these are distinct rights both in theory and in practice. The rights are often
treated separately in the contractual domain, the Honorable Justice
McLachlin noted; it is common, for example, for performance and recording
rights to be assigned separately.
The court further stated that, because a performance is public in nature,
there is a greater likelihood that copying in such cases will come to the artist's
attention. She distinguished this situation from that which prevails in the case
of recordings, which are permanent and may be copied easily, privately, and
precisely. As a result of these considerations, the court held that recording
rights and performance rights merit separate treatment and separate
schemes of protection.
Legislation Likely. This litigation, as mentioned above, resulted partly from the
absence of a specific provision in the Canadian Copyright Act dealing with
ephemeral recordings. Canada never adhered to the Brussels Convention on
satellite signals and, therefore, never adopted an explicit legislative
exemption authorizing such recordings.
Consequently, the Supreme Court opted for a literal interpretation of the Act
on this question, while making clear its reluctance to rule on a matter of
policy which, it concluded, falls within the legislature's purview. It is likely that
Parliament will enact the appropriate exemption in the near future.
The Télé-Métropole decision, therefore, clarifies the question of copyright in
ephemeral recordings in Canada. The court does not condemn or prohibit
the practice, but simply advises broadcasters wishing to pre-record in
Canada to "make the appropriate arrangements with the holder of the
recording rights."
Published at (1990), 4 W.I.P.R. 268-269 under the title Supreme Court Says
Broadcast Doesn't Include Right to Pre-Record.
© LEGER ROBIC RICHARD / ROBIC, 1990.
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