Current definitions (from Jan 1, 1994 on) relevant to musical works include the following:
“musical work” means any work of music or musical composition, with or without words, and includes any compilation thereof.
“every original literary, dramatic, musical and artistic work: includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as … dramatico-musical works, musical works, translations.
The definition of every original literary, dramatic, musical and artistic work” continued as it was prior to August 31, 1993, but on January 1, 1994, the reference to “or compositions with or without words” was deleted.
For amendments with effect from Aug 31, 1993 see the Copyright Amendment Act.
For amendments with effect from Jan 1, 1994, see the NAFTA Implementation Act.
Limitation Prior to August 31, 1993
The narrow definition of musical works prior to Aug 31, 1993, presented a principal limitation on the scope of protection for musical works - only the written score or music fixed in a written or graphic format could be protected.
Music composed at a piano, and then recorded on an audio tape was not covered.
Also meant that transmission was not covered, only the written work was.
Composers, Authors and Publishers Assoc. of Canada Ltd. v. CTV Television Network Limited
Plaintiff was a performing rights society representing owners of copyright in musical works.
Percentage of the sale was to be paid as tariffs.
Network sold tapes with advertising to the affiliates.
Plaintiff wanted a percentage of the network’s receipts (which were higher).
Copyright Appeal Board granted a tariff that would allow this, but the defendant refused to obtain a licence and continued with existing practice.
Plaintiff sued for copyright infringement of seven named musical works.
Focus was on s 3(1)(f) as it was, which provided a right in the copyright owner “to communicate a work by radio communication”.
Today 3(1)(f) provides an exclusivity “in the case of any literary, dramatic, music or artistic work, to communicate the work to the public by telecommunication”.
The affiliates had the right to transmit the works.
Network enabled them to do so.
Can’t be a tort merely to authors or cause a person to do something that that person has a right to do.
CAPAC’s claim is based essentially on (f) and the concluding words of sub (1) of s. 3 of the act, enacted that copyright includes the sole right in case of any literary, dramatic, musical or artistic work, to communicate such work by radio communication; and to authorize any such acts as aforesaid.
Consider “musical work”
Consider “performance” means any acoustic representation of a work or any visual representation of any dramatic work, including a representation made by means of any mechanical instrument or by radio communication.
The signals transmitted from CTV to the affiliated stations did not communicate the musical works as defined in the Act, that is graphic reproductions of melody and harmony.
What was communicated was a performance of the works.
On a literal construction of the Act, CAPAC’s case fails as it rests on (f).
Read somehow aside from literal?
Looking at the French version: Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their works to the public by radio communication.
To the public is linked with communication, the communication isn’t to the public in this case.
Held:
CAPAC’s contention cannot be supported either on the literal meaning of the statute or on construction in the light of the intention revealed by the whole act, including the schedule.
Issue with networks and affiliates was dealt with by the inclusion of ss 3(1.4), (1.41) and (1.5) of the Copyright Act by s. 2 of the Copyright Amendment Act which provided for joint and several liability between the two entities.
Songs
Definition of musical work in Canada includes the phrase “with or without words”.
In Canada the single musical work of tune and lyrics has presented some difficulty with respect to parody.
Context historically had focused on s. 29(1) of the Copyright Act which provided a statuary lien sing system enabling persons to make recordings of any musical, literary, or dramatic work if recordings had previously been made with the consent or acquiescence of the owner of the copyright in the work and prescribed notice was given and royalties, as stipulated in the Act, were paid.
s 29(2) precluded any alterations in or omissions from the work in the licensed production.
Being a single work, an alteration would occur in a parody, which would mean there would be an infringement of the original work within s. 29 of the Act.
Today it’s of no relevance, but a parody may constitute an infringement of the moral right to the integrity of the act.
Further issues arise if one person writes the lyrics, the other the tune or music.
ATV Music Publishing of Canada, Ltd. v. Rogers Radio Broadcasting Ltd.
Revolution was originally composed by Beatles.
Defendants recorded and broadcast a song, Constitution, with words written by the defendant, and with the music of Revolution.
Defendants had sought and been refused permission to use the music of Revolution.
Motion for interlocutory relief.
Defendants submit that there are separate copyrights in the music and the words of Revolution.
Ludlow Music Inc v. Canint Music Corp Ltd. et al.
According to the ordinary use of words by ordinary people, a song is a musical work and the words of a song (apart from tune) do not constitute a musical work.
The tune of a song (considered apart from the words) is not a song.
Thibault v. Turcot et al
QCSC found that when two people collaborated, the one writing the music and the other the libretto, the work is one complete unit for the purpose of copyright.
MCA Canada Ltd et al. v. Benwell et al.
Injunction refused where the defence was that the plaintiffs had no copyright and that what the defendants were proposing to do did not constitute an infringement of such rights if they existed.
Copyright claimed was in an oratorio comprised of 23 different songs connected by choral chants.
Defendants had been licensed to perform the 23 individual songs, were to perform 15 of them in a different sequence, interspersed with other musical works.
Was that a performance of the oratorio?
In the Canadian act, as in the English act, it is recognized that a collective work may have a copyright of its own.
Defendants admit that the music is the music to Revolution, written by the same people that wrote the lyrics for Revolution.
Both people wrote both, no evidence to contrary.
Therefore, no evidence of separate copyright.
As a result “work of joint authorship” for which there would be one copyright of which the plaintiff is the owner in Canada.
