CMRRA was in attendance at the Supreme Court of Canada as it heard submissions in CBC v SODRAC in Ottawa on March 16, 2015. We were there along with the Canadian Music Publishers Association and the International Confederation of Music Publishers as an intervener in support of the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC). Music Canada also attended as an intervener on SODRAC’s behalf.
The dispute between SODRAC and the Canadian Broadcasting Corporation (CBC) centered upon reproductions of music contained in audiovisual programs. When music is incorporated into a television show or movie it is said to be “synchronized” with the visuals, and this process is handled via agreements between the producer of an audiovisual work and the music rightsholder(s) involved. When a broadcaster such as the CBC prepares to transmit an audiovisual program, they make 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 necessitates 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 SODRAC pursuant to a decision by the Copyright Board of Canada.
The Supreme Court heard from counsel for SODRAC, who explained the historical developments in Canadian copyright law regarding copies of musical works made by broadcasters. Beginning with the foundational 1990 decision by the Supreme Court in Bishop v Stevens, counsel explained that the Court established that under the Copyright Act royalties are due for “ephemeral copies” of music made to facilitate broadcasting. Following that decision, CBC signed a licensing agreement with SODRAC in 1992 that allowed the broadcaster both to synchronize SODRAC’s music into their programming as well as to make any reproductions as necessary to facilitate its television broadcasting operations. Representatives of Canadian broadcasters then lobbied Parliament to amend the Copyright Act to include exceptions that would allow them to make copies of copyrighted works in the course of broadcasting without being required to pay royalties to the owners of those works. As a result, the Copyright Act was amended to include a few limited exceptions to allow for the reproduction of copyrighted works by broadcasters without infringing copyright.
Counsel for SODRAC explained how the Copyright Act amendments that followed Bishop v Stevens represent the full exceptions to copyright law that legislature has extended to broadcasters. Despite CBC’s contention that there should not be royalties for the broadcast incidental copies in additional to the synchronization fees, the Copyright Act was, in fact, already amended specifically to address these sorts of concerns. Copyright owners are merely advocating for fair compensation for the use of their works, as provided by law, SODRAC contended.
Counsel for CMRRA and its co-interveners expanded upon how SODRAC’s position reflects fundamental principles of copyright law. CMRRA maintained that the divisibility of copyright and flexibility in licensing are central tenets of Canadian law and industry practice, and allow the rightsholders the right to assign or license their rights, in whole or in part, subject to whatever limitations they see fit. CBC’s position ignores this principle and would treat compensation for one category of rights as though it were sufficient to license a work in full. CBC also argued that a licence for synchronization rights should implicitly and additionally include the right to create reproductions of synchronized works for broadcast. Not only would this ignore the divisibility of copyright, but it would also violate the principle of freedom of contract by forcing rightsholders to include additional reproduction rights in synchronization licences. CBC itself recognized these principles when it signed the 1992 licence with SODRAC, which explicitly included the rights for both synchronization and reproductions of synchronized works for broadcast.
Music Canada’s counsel also provided guidance on how SODRAC’s position is consistent with Canada’s obligations under international copyright treaties, as well as outlining the concept of technological neutrality.
CMRRA was proud to stand with SODRAC and the other interveners present before the Court, advocating on behalf of copyright owners throughout Canada. We are confident that counsel made the position and rights of copyright owners clear, and we look forward to the Supreme Court’s decision on the matter so that any disputes as to those rights can be settled in law.
