The recent federal budget (tabled in the House of Commons 21 April, 2015) included two measures that will have a profound effect on the use of copyrighted works in Canada. The first measure provides for an extension of copyright for makers of sound recordings and performers’ performances in sound recordings. The second measure announces Canada’s decision to sign the Marrakesh Treaty which will provide greater user rights of copyrighted works by Canadian with visual impairment (see separate posting for discussion of this measure).
Changes to the Copyright Act introduced in the budget will extend protection for sound recordings and performances from the current 50 years to 70 years following the first release of the recording (Economic Action Plan, 2015). This will bring Canada’s copyright legislation with respect to sound recordings and performers in line with its trading partners in the EU, the US and other jurisdictions.
The decision has drawn a good deal of commentary. Michael Geist of the University of Ottawa Law Faculty, in posts (The Great Canadian Copyright Giveaway: Why Copyright Term Extension for Sound Recordings Could Cost Consumers Millions; Is the Great Canadian Copyright Giveaway Really About Some Cheap Beatles Records?) characterized the decision as unexpected and unnecessary and one that “is a windfall for record companies, with little benefit to artists or the public…For Canadian consumers, the extension could cost millions of dollars as works that were scheduled to come into the public domain will now remain locked down for decades.” Geist states that many songs are performed by the composer/lyricist and that they will continue to enjoy royalties on their compositions for the standard period of copyright protection (life plus 50 years). He further claims that the extension had not been brought forward in previous copyright consultations and that there had there been no public discussion on the matter. He believes the reason for inclusion of the term extension in the budget is part of the run-up to the Trans-Pacific Partnership agreement and states that the government decided to “cave” to major foreign record labels following representations from lobbyists in March of this year.
Barry Sookman of McCarthy Tetrault, a major Canadian law firm, disputes Geist’s claims in Term extension and respect for artists: a reply to Michael Geist, stating that “many of his assertions are inaccurate or do not stand up to scrutiny.” Sookman points out the anomaly whereby composers of songs and lyricists will continue to enjoy royalties, but makers and performers of popular songs from the 1960s are already losing their royalties in Canada (but not elsewhere) as companies release new pressings of music that has entered the public domain. The two acknowledge that most of these rights are owned by record labels, but Sookman points out that the labels pay royalties to the performers where the songs are publicly performed (on radio, in bars and clubs, via streaming, etc.). This revenue stream too would have dried up without the extension. He disputes Geist’s claim that the extension will cost Canadians millions of dollars and tosses cold water on many of the documents Geist cites to back-up his argument. He concludes his post by noting that Geist ascribes the changes to the TPP negotiation; “He doesn’t, however, appear to have considered a much more plausible alternative: the government respects artists and their music and decided to act before it was too late”.
Certainly these are not the only voices in the discussion (see Howard Knopf, the Electronic Frontier Foundation, Music Canada and others for further comment).
