There are different Canadian laws on intellectual property (IP), depending on the kind or type of IP. When music is composed or created, its protection as an original musical invention would fall under a copyright, which is governed by the Canadian Copyright Act.
Generally, a copyright is the right granted to the original creator of a thing, to produce or reproduce their original creation, to be paid when other persons would like to reproduce the said original creation, and to be protected against infringement, which occurs when another person other than the creator illegally reproduces the creator’s invention without being granted its “copyright” or its permission.
According to the Copyright Act, a copyright in relation to music law may mean two things – a copyright in the case of a sound recording (Section 18), and a copyright in in the case of a performer’s performance (Sections 15 and 26). These rights automatically attach the moment that the original composition was created, or performance was recorded or performed. As to the composer, it applies both to the song’s lyrics and its combination with the music.
For serious issues around copyright, be sure to reach out to a lawyer in your province. This in Ontario should seek to hire an entertainment lawyer in Ontario as there will be variances in provincial laws.
Composer’s Copyright
Section 18 of the Act provides that a maker of the sound recording (the author or composer) has a copyright over their sound recording (the composition or the song), which entitles them to publish the composition or the song for the first time, to reproduce it in any material form, and to rent it out.
The Act also provides for exceptions to this right of the copyright holder, such as when a person or a juridical entity (a publisher or a recording company) legally purchased the original copy of the song, or when the reproduction is not used for commercial or for profitable purposes.
Performer’s Copyright
Under Section 15 of the Act, a performer would also be entitled to copyright of their performance, which includes the right to communicate it in any form, to perform it in public, to fix it in any form, or to rent it out to other persons or entities. This right would also apply to performances outside Canada but within a country which is a member of the World Trade Organization (WTO), as provided in Section 26. A performer is also granted moral rights under the Act, which is the right to be associated with the performance when performed live or when it is fixed in a sound recording.
Performers and composers also share similar rights under the law, which are the:
- Right to remuneration if the sound recording has been published or communicated publicly; and
- Right to royalties paid by the person who publicly performs or publicly publishes a published sound.
Royalties
As such, performers may also have to pay royalties to the copyright holder (either the composer or their publisher or recording company) of the original song or composition when they perform it publicly or for profit. But at the same time, the performer may also be paid royalties when their performance is publicly performed or publicly published.
Royalties may also be collected by a musicians’ collective or collective society authorized by law to collect such royalties. In Canada, the prevailing musicians’ collective are:
- The Society of Composers, Authors and Music Publishers of Canada (SOCAN)
- The Canadian Musical Reproduction Rights Agency
- Connect Music Licensing
- Re:Sound
The Act also provides for the division of royalties when collected these musicians’ collectives (Section 19), with the performer and the composer being entitled to 50% each, respectively.
Music Law and Contracts
When Section 18 of the Act refers to the right of the copyright holder to “rent out” their composition or song, this “renting out” is primarily executed through a written contract between the copyright holder (at first, the author or composer) and the publishers and recording companies (who would become the copyright holders as to the song’s publishing).
This contract is otherwise known as an assignment contract, publishing contract, etc. It is worthy to note that this contract of assignment must be in a written form, and not just executed verbally. In the same way, a performer may also enter a written contract with a publisher with regards to its broadcasting, fixation, or retransmission (Section 16).
As such, common law applicable to contracts (or the Civil Law provisions on contracts in Quebec) apply to music law regarding these transactions entered between the composer or the performer, and the publishers or the recording companies. In order to be valid, it is required that:
- a contract should have been consented by both parties;
- that both parties (especially the composer or the performer) should have the legal capacity to enter into contracts;
- that the elements of a contract are present (i.e., offer, acceptance, and consideration);
- that there is the intention to create legal relations through the contract;
- that the contract should be complied with by both parties in good faith;
- and among other Canadian common law principles on contract law.
In addition, remedies are granted to both parties when there’s a breach on their contract. It may include, or be a combination of, specific performance to compel the party’s compliance of the contract; injunction, to prohibit a party from doing a specific act; payment of damages; or rescission of the contract.
How can music be licensed in Canada?
A copyright subsists during the creator’s lifetime and for a period of 70 years after their death for a composer, and 50 years for the performer, subject to certain conditions and exceptions. However, to be entitled to the rights under the Copyright Act, or be a copyright holder, a composer or performer does not need to register before any office to be entitled to such right. Nevertheless, it is highly recommended to register such copyright before the Canadian Copyright Office to be fully protected under the law.
For third parties or consumers (individuals and organizations), to legally use the music of composers or recorded performances of performers, they may have to pay the musicians’ collective where the said composer or performer has licensed their music with.
Want to know more about Canadian music law in relation to intellectual property rights? Talk with the best Lexpert-ranked entertainment lawyers in Canada in your area or write your questions down below.