Les artistes de studio d’enregistrement et les maisons de disque, en tant qu’artistes interprètes et producteurs de musique, ont ils le droit de recevoir une rémunération équitable au titre de l’article 19 de la Loi sur le droit d’auteur, L.R.C. 1985, ch. C 42, lorsque leur musique est jouée au cinéma et à la télévision? — La définition d’« enregistrement sonore » à l’art. 2 de la Loi sur le droit d’auteur exclut elle la rémunération équitable aux termes de l’art. 19 pour la musique préenregistrée faisant partie d’une bande sonore?
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Sound v Motion Picture Theatre Association of Canada (2011) |
Jurisdiction
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FCA
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Facts
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Application by Sound for judicial review of decision by Copyright Board that no one is entitled to equitable remuneration pursuant to s. 19 of the Copyright Act when a published sound recording is part of the sountrack that accompanies a motion picture performed in public, or a television program that is communicated to the public by telecommunication. Sound wants tariffs imposed.
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Issues
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Is anyone entitled to remuneration when a published sound recording is part of a sountrack to a motion picture performed in public or on TV?
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Holding
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No.
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Reasoning
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Board’s decision relies on definition of “sound recording” in s. 2 of the Act (a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work).
Sound wants tariffs imposed on the individual components of a soundtrack, not the soundtrack as a whole (the sountrack is the physical location of the sound recording)
Under s. 17(1), a performer must authorize the embodiment of his or her performance in a cinematographic work. This precludes/punishes an unauthorized embodiment of the performance in a cinematographic work. Also, once a sound recording is extracted from the soundtrack, it again attracts the protections offered performers and makers under the Act.
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| C/R ACT
Provisions Applicable To Both Performers And Sound Recording Makers
Right to Remuneration
S. 19. (1) Where a sound recording has been published, the performer and maker are entitled, subject to section 20, to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for any retransmission.
Royalties
(2) For the purpose of providing the remuneration mentioned in subsection (1), a person who performs a published sound recording in public or communicates it to the public by telecommunication is liable to pay royalties
(a) in the case of a sound recording of a musical work, to the collective society authorized under Part VII to collect them; or
(b) in the case of a sound recording of a literary work or dramatic work, to either the maker of the sound recording or the performer.
(3) The royalties, once paid pursuant to paragraph (2)(a) or (b), shall be divided so that
(a) the performer or performers receive in aggregate fifty per cent; and
(b) the maker or makers receive in aggregate fifty per cent.
Cinematographic works
S. 17. (1) Where the performer authorizes the embodiment of the performer’s performance in a cinematographic work, the performer may no longer exercise, in relation to the performance where embodied in that cinematographic work, the copyright referred to in subsection 15(1).
Right to remuneration
(2) Where there is an agreement governing the embodiment referred to in subsection (1) and that agreement provides for a right to remuneration for the reproduction, performance in public or communication to the public by telecommunication of the cinematographic work, the performer may enforce that right against
(a) the other party to the agreement or, if that party assigns the agreement, the assignee, and
(b) any other person who
(i) owns the copyright in the cinematographic work governing the reproduction of the cinematographic work, its performance in public or its communication to the public by telecommunication, and
(ii) reproduces the cinematographic work, performs it in public or communicates it to the public by telecommunication,
and persons referred to in paragraphs (a) and (b) are jointly and severally liable to the performer in respect of the remuneration relating to that copyright
Application of subsection (2)
(3) Subsection (2) applies only if the performer’s performance is embodied in a prescribed cinematographic work.
Exception
(4) If so requested by a country that is a party to the North American Free Trade Agreement, the Minister may, by a statement published in the Canada Gazette, grant the benefits conferred by this section, subject to any terms and conditions specified in the statement, to performers who are nationals of that country or another country that is a party to the Agreement or are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and whose performer’s performances are embodied in works other than the prescribed cinematographic works referred to in subsection (3).
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