What is a Sound Recording? ...cont'd

On Thursday, May 7th, 2009 the Copyright Board will hold an oral hearing on the preliminary matter of whether the definition of “sound recording” in the Copyright Act excludes a sound recording embodied in a sound track of a cinematographic work, in the context of whether movie theatre owners and television broadcasters must pay a tariff to owners of rights in sound recordings.

The Act says:

"sound recording" means 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;

(Emphasis added)

While the meaning of this definition has seemed to be clear up until now, the NRCC has decided to try to assert a right to be paid for the use of sound recordings that are part of the soundtrack of films. This hearing should be interesting, considering the rather complex and lengthy arguments filed on both sides by some very experienced counsel. The word “absurd” seems to loom large in arguments on both sides of the fence.

The last time a hearing of this nature on a such a basic issue took place involved the CPCC's unsuccessful attempt for the second time in the “iPod tax” matter to collect levies for the sales of digital audio recorders, despite the fact that the Act refers to “medium” and not to “device” and despite the fact the Federal Court of Appeal had denied the same thing just over a couple of years earlier and the Supreme Court of Canada had refused to hear an appeal on the issue.

As I pointed out in February, for the upcoming hearing, the NRCC has filed a 30 page memo with references to law from the USA, UK and mostly Australia - and relatively little about Canada. Perhaps this is because the Canadian statute clearly speaks for itself in this instance. Interestingly, the Supreme Court of Canada has twice recently refused to follow Australian copyright precedents that were essential to the arguments being advanced by ultimately unsuccessful plaintiffs, notably in the CCH and Kraft cases. Anyway, we shall see. Either way, this is likely to end up in the Federal Court of Appeal.

This proposed tariff was filed on May 31, 2008. This preliminary motion will be heard just over 11 months later May 7, 2009. By comparison, in the “iPod tax” matter (in which I was involved), the tariff was filed on February 10, 2007 and the preliminary motion was heard about four months later in June of 2007. The Federal Court of Appeal finally disposed of the matter in exactly 11 months from the initial filing of the tariff. In the current instance, the schedule is apparently much slower.

HK