Music Copyright in the Internet Age

Copyright_ByStuartMiles_CST Published 06/19/2014

By Gilles Daigle

Since the advent of digital technology, there has been and continues to be a very wide range of differing views on the proper place of copyright protection for music. Music has been at the forefront of the debate since the earliest days of filesharing. That reality has been experienced in many forms, including legislative amendments, court decisions, academic debates and plenty of discourse by stakeholders on all sides of the issue.

This is hardly new. In the mid-1800s, a group of French composers in a Paris café-concert venue refused to pay their bill in response to the café’s refusal to pay them for the performance of their music on the premises. That little dispute made its way into the courts and lead to the establishment of the world’s first performing rights society.

About 75 years later, a new debate took place to deal with the advent of the revolutionary technological development known as radio broadcasting. Could this new use of music be considered public performance? The laws would have to (and did) change to ensure that composers would receive fair compensation. Further controversy and debate would result from the advent of yet another new technology thirty years later, transmission of television programs by cable and satellite.

Now we have music use on the Internet. As with the previous developments, courts and legislatures are slowly but surely acting on the issues raised by this and other new technologies. Do free-trial subscriptions offered by Netflix constitute “fair dealing”? Do radio stations no longer need to pay reproduction rights royalties for copying music on their computerized programming systems?  Time will tell. And for each case, the first answer may not be the last word.

Nothing new. But what is new is the view that digital technology has rendered copyright laws and policies ineffective, or even obsolete – that they need to be fundamentally changed, or eliminated. I disagree, and believe that one shouldn’t throw the baby out with the bathwater.  Current issues will be sorted out, as they have been in the past.  In the meantime, the fundamentals remain strong.

Copyright is what allows SOCAN’s more than 120,000 members to earn money for the public performance of the music they’ve written. In 2013, SOCAN – a non-profit collective owned by our songwriter, composer and music publisher members – collected a record $276-million in total revenue, and distributed a record $240-million of that to our members. None of this would be possible without copyright, which is the mechanism by which our members claim ownership of their work, and are able to collect money for its performance.

As the digital age blossoms, music copyright allows SOCAN to work, on behalf of our members, to license new music uses that come into existence – even though it’s not always easy. SOCAN’s raison d’être is to represent and defend the rights and interests of our more than 120,000 members, so of course we work hard to license new music uses as they emerge, and defend our members’ rights against legal challenges when they arise (which is often). We wouldn’t be able to do so without copyright, and only music that is copyright-protected can be licensed, and provide royalties for those who wrote that music, published it, and earned them.

YouTube offers a perfect example of SOCAN licensing a new music use. In addition to directly collecting performing rights licence fees from YouTube and distributing those royalties for the first time in 2013, SOCAN also initiated its collaboration with Audiam – a company that aggregates and monetizes other music uses on YouTube – to facilitate an additional royalty stream. SOCAN made its first distribution on behalf of Audiam in November 2013, and early predictions show that this source of revenue is growing by as much as 700 percent since the last quarter alone. SOCAN has made great efforts to educate our members so that they understand and are able to claim these royalties, which we would be unable to collect without copyright.

As with YouTube and Audiam, SOCAN partners with all kinds of companies, large and small, to enable them to use copyright-protected music to enhance their business and customer experience, while ensuring that the SOCAN members who created it get paid for that use. It’s a win-win-win arrangement for the businesses, their customers, and our SOCAN members, and copyright is the basis on which it stands. Our Licensed to Play campaign, launched in February 2014, encourages businesses and their customers to confirm their recognition that music is an instrumental aspect of their experience, and showcases the implicit partnership and mutual admiration that licensed businesses have with our members.

SOCAN works not only with companies that use music in their business, but continually strives for more collaboration and alliances with like-minded music rights organizations (MROs) to make music copyright more effective. For example, in March 2014 we launched MusicMark, a collaboration between ASCAP, BMI and SOCAN, which allows all three organizations to share their data, making copyright work better for the members of all three MROs. MusicMark also makes the music registration process much simpler and more efficient for them. Once MusicMark is fully implemented, songwriters, composers, and music publishers will be able to submit a single registration file simultaneously to all three MROs.

Copyright is, quite simply, the foundation upon which all of SOCAN’s activity stands, and without which we would be unable to collect any performance royalties and distribute them to our members – let alone the $240-million we provided to our members in 2013. It’s what allows our members to survive, earn a living, and even thrive.

Much work remains to be done – that can’t be denied. But where copyright is concerned, don’t stop believin’!

About Gilles Daigle

Gilles Daigle has been practising copyright law for almost 25 years.  He developed a great interest in the area upon joining the Gowlings firm as an articling student in 1989.  It was at that time that he began to work on SOCAN matters, including dozens of appearances before the Copyright Board in relation to music performing rights over the years.  That work also lead to many cases before the Federal Court of Appeal and the Supreme Court of Canada.  In March 2012, Gilles left the Gowlings partnership to join his long-time client SOCAN as General Counsel and Head of Legal Services.  He lives in Ottawa and is a huge fan of the Senators hockey team, which makes for interesting conversation when he meets his colleagues in the SOCAN Toronto, Montreal and Vancouver offices.  He is also an avid fisherman who enjoys spending time on the lake fishing bass with his two sons, Eric and Alex.

Comments

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  1. Terry Logan

    With the internet clearly recognized as (world best source) of documented information, would it not be fair to assume that, a posted blue print, a document, first audio broadcast or song, confirm a copy right owner where none existed before?

    Reply

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