Showing posts with label NRCC. Show all posts
Showing posts with label NRCC. Show all posts

Wednesday, September 16, 2009

When is a Sound Recording Not a Sound Recording?



Earlier this year I posted about the NRCC's attempt to get a tariff on the use of sound recordings as embodied in the soundtracks of movies and as performed in theatres and on TV. See here and here:

It will be recalled that the Copyright Act defines “sound recording” as:

"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)

The definition of “cinematographic work” is this:
"cinematographic work" includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack.
Sections 15, 17, 18 and 19 are also pertinent.

The Copyright Board has just issued its decision on a threshold legal question as to whether NRCC (the neighbouring rights collective - of which there is no counterpart in the USA) is entitled to seek a tariff related to:
the performance in public or the
communication to the public by
telecommunication, in Canada, of published
sound recordings embodying musical works and
performers’ performances of such works.
The NRCC made a rather strained argument heavily dependent on foreign and mostly Australian case law that, despite the clear wording of the statute and the legislative history, it is entitled to a tariff for the above uses.

Today, the Board came to the predicable and correct conclusion along the lines I had suggested in my earlier blogs. It ruled against the NRCC. I believe that the Board got this right and did so decisively, if not particularly quickly. The tariff was published on May 31, 2008 and the hearing on this issue took place on May 7, 2009. Here's the Board's well written and well reasoned decision.

I have little doubt, however, that the NRCC will seek judicial review. This time, unlike the "iPod levy” case where the Board wanted to proceed with a tariff hearing in spite of the clear wording of the statute and a previous Federal Court of Appeal decision on the same issue, I believe that the Board will be upheld in any judicial review.

It is useful for the Board to dispose of as many threshold questions as possible to avoid unnecessary hearings, since Board hearings are so expensive and stretch out over such a long time. It is good to see that the Board is prepared, when appropriate, to decline to proceed with a proposed tariff that clearly cannot be legally justified.

HK

Monday, May 04, 2009

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

Saturday, February 21, 2009

Cutting at NRC & CISTI

The Ottawa Citizen reports that the the NRC is cutting up to 300 jobs. NRC is Canada's acclaimed National Research Council. The cuts will affect its very important library and its publishing arm will be privatized:
...the Canada Institute for Scientific and Technical Information (CISTI), the country’s national science library and a leading publisher of scientific information, is to be streamlined into a smaller unit. The Research Press, the publishing arm of CISTI, could be turned into a private company.
It's too bad when things that the government has done so well for so long get cut and privatized. The NRC has been a good advocate for research, innovation and access to STM knowledge.

Rumours of the eventual privatization of the CBC - another producer of intellectual property that the private sector cannot or will not do nearly nearly as well - are becoming more and more credible.

Certain areas of research and culture are "public goods" and "public services." There are many things in government that could be more efficient. Cutting public goods and services and handing them over to private interests should be a last resort - especially when important STM and cultural IP are involved.

HK

Friday, February 13, 2009

More Multiplicity of Multiple Copyright Tariffs?

Last year, the Neighbouring Rights Coalition of Canada (“NRCC”) filed a proposed tariff that raised more than a few eyebrows. It seeks money from broadcasters for the communication to the public by telecommunication of sound recordings embodied in cinematographic works and from motion picture theatre operators for the performance in public of such recordings . SOCAN gets paid by these same folks for these same activities, So why would anyone object to the basis of the tariff for the NRCC? After all, NRCC has been playing catchup with SOCAN for years, and the Copyright Board has basically accepted that it can do so, subject to such inconvenient little details as the eligible repertoire requirement, which in theory keeps much of the neighbouring rights payments in Canada. Moreover, multiple tariffs for the same activity are nothing new in Canada.

The reason several major parties did a double take is that the definition of “sound recording” in the Copyright Act explicitly excludes a “soundtrack.”

The definition of “sound recording” is this:
"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)

The definition of “cinematographic work” is this:
"cinematographic work" includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack.
One might well ask “What part of the these definitions is not clear”?

The NRCC filed for a tariff, notwithstanding the above apparently clear wording. Despite the apparently clear wording, the Board published the proposed tariff, which forces parties to engage in a costly objection process. Some major parties have objected at the outset on the obvious jurisdictional basis that the definition of sound recording explicitly and clearly excludes the soundtrack in a cinematographic work.

In a procedure remarkably reminiscent of the “iPod tax” tariff case from 2007, the Board has required the parties to make submissions on this jurisdictional issue and to potentially hold an oral hearing to determine whether the tariff can proceed. 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. The Australian copyright statute is very different than Canada's. Although they descend from statutes that once were first cousins or maybe even siblings, the family resemblance between the recent generations of these two statutes is no longer easy to discern, following many legislated and judicial mutations.

Whatever the Board decides will likely end up in the Federal Court of Appeal (“FCA”), as it did in the “iPod Tax” decision, in which I was involved. Without specifically commenting on the merits of the NRCC position and the points in its memorandum, I will say that it is entirely possible that the FCA might be comparably "brusque" in this instance, if the Board decides that the hearing should go forward based on the NRCC arguments. Moreover, if NRCC is right in this case that its position is based on a “plain reading” of the Canadian statute, one wonders why it took eleven years to figure this out. The law that NRCC relies on came into force in 1997.

HK

Wednesday, December 10, 2008

Music As Torture- and the Bands Played On

The use of music as torture by the Americans is still going on, according to this article.

Many musicians are upset about this. Some think it's great.

I blogged about the unpaid royalties a few months ago here and here and here.

I have a new somewhat tongue in cheek suggestion. If the US really wants to ratchet up the pain level, they should try the using the new CBC Radio 2.

For those outside of Canada, that's Canada's highly subsidized once magnificent public radio network that is now being run into the ground.

I'm serious about how painful the "New 2" is to those who care about classical music, culture and professional quality broadcasting. To slightly twist a couple of CBC's undoubtedly expensive new slogans, the "New Two" might well be described as:

Everywhere Music Aches You.

A Music Mix You Won't Hear Anywhere Else - Thank God!


BTW, the estimated advertising costs alone of the launch this very unpopular purge of a noble 7o year tradition are well over $2,000,000 to date. The CBC is refusing ATIP (access to information) requests on this issue.

The additional SOCAN and NRCC royalties that will be generated by all of the additional commercial music that is now being played at the expense of public domain classical music are likely to be several million dollars a year, as I pointed out some months ago here.

Thank goodness we can turn CBC Radio 2 off, as countless hitherto long loyal listeners have done. I can't imagine being forced to listen to it for any length of time.

HK

Monday, April 21, 2008

CBC’s Radio Two is being run into the ground

Page 21 THE HILL TIMES, MONDAY, APRIL 21, 2008

OPINION

CBC’s Radio Two is being run into the ground,

writes Howard Knopf

The devastation of CBC Radio Two in the last year by a small cadre of senior and middle managers after decades of distinguished history is a travesty that is becoming a tragedy.

By HOWARD KNOPF

Never before in Canadian culture has so much damage been done to so many by so few so fast. The devastation of CBC Radio Two in the last year by a small cadre of senior and middle managers after decades of distinguished history is a travesty that is becoming a tragedy. And it will soon get even worse. If this isn’t decisively reversed now, many children - especially those outside of the big cities - are going to grow up in Canada with virtually no exposure to classical music. Moreover, many older people who continue to pay lots of taxes - and to vote - will arguably be deprived of their right to hear “a wide range of programming that informs, enlightens and entertains” as required by the Broadcasting Act.

By fiat of elite CBC management, dead European classical composers will be all but purged from the airwaves. Living serious music composers will be marginalised unless they have broad appeal, like Phillip Glass or Marjan Mozetich. Forget about the more challenging modern masters like Elliott Carter, R. Murray Schaeffer, or Harry Somers. They are no longer important or even relevant in the brave new diverse world of CBC. Even the CBC’s own flawed small-sample survey research that supposedly justified the new “renewal” indicated that 49% of respondents who listened to Radio Two wanted more “classical” music and only 32% wanted less. Likewise, only 35% of respondents wanted more of “today’s popular music” and 56% said they wanted less.

As a result of CBC management’s plan to abandon the “over 50" audience in its doomed mission to win the hearts, minds and ears of a younger generation, we’ll soon hear lots of Feist and countless lesser wannabe song writers and performers. We’ll hear CanCon Old Gold that is too worn out for commercial radio, such as BTO, Lighthouse and Anne Murray. These will be the new “classics.” We’ll also hear much more Old Gould, which is always good for Canadian flag waving. Just what the downtown Toronto music elite establishment wants us to hear because that’s where the money is.

Out with the old elite. In with the new elite, who will include the very successful commercial musicians and record companies who recently signed a very expensive ad in the Globe and Mail, clearly suggesting the answer to the question of “cui bono” (who will really benefit) from all of this.

Speaking of elites, the elite few that are now running Radio Two (into the ground, in my opinion) want us to believe that all music is equal. But it isn’t. Popular music is rarely really “good” music that will endure and become classical. Much of it is part of the junk and fast food of modern culture.

Pierre Juneau did a great thing for Canadian commercial music with the Canadian content requirements. But let us not gild the lily by turning the CBC into a second rate commercial network. That would not only be contrary to the Broadcasting Act. It simply won’t work because CBC doesn’t have the skills to make it work.

One of the yet unexplored ironies of this sad Canadian version of a cultural revolution is that this exercise in inverse elitism may end up actually costing the CBC a lot of money, despite the stated goals of CBC management to the contrary. For example, CBC has just killed off the CBC Vancouver Radio Orchestra, the last remaining jewel in a crown that was once acclaimed throughout the world. No less than Igor Stravinsky, the giant of all twentieth century serious composers, chose to use the long gone CBC Symphony Orchestra in Toronto to make some of the most definitive recordings of his own music, including the legendary performance of his Symphony of Psalms that he conducted in 1963. Naturally, in classic Canadian fashion, the orchestra was disbanded the following year.

CBC claims that eliminating its Vancouver radio orchestra will save money. It reportedly cost only about $600,000 a year to run the orchestra. Even CBC brass claim they will save less than a million a year with the cut. Much of that will now likely go to recording and subsidizing commercial music.

Moreover, here is what CBC is not telling us. In dumbing down to five hours a day of “classical” music (in the middle of the day when almost nobody can hear it), CBC will greatly increase its airtime for copyright protected music (music not in the public domain). This means that CBC’s copyright tariff costs will surely increase. At last report, the CBC was paying almost $1.5 million a year to SOCAN as of 2005 for its radio activity alone - for the use of repertoire that historically has included a lot of public domain classical music. According to Canada’s Copyright Board, in 1998 the percentage of “protected” music played on CBC radio overall was somewhere between 21% and 24% of its broadcast day. Clearly, this percentage will now rise substantially.

Whatever calculation may have been in place before will likely now change. Someone will probably do some arithmetic on the back of an envelope and suggest that CBC should double or treble or increase even more that amount of $1.5 million a year in view of the fact that the dreaded (dead for more than 50 years) European composers will be taking up very little time now on the CBC’s subsidized radio network. CBC will likely agree rather than offend Canada’s commercial music elites and have to go to the trouble of actually having a hearing at the Copyright Board, which it hasn’t done for a very long time. Such increased payments would be perfectly consistent with CBC’s new policy of pandering to these commercial elites.

So the small saving realized from killing off the last radio orchestra in North America will likely be more than offset by increased SOCAN payments alone. This is not to mention inevitable new demands by NRCC - the record companies’ and performers’ collective that is trying to play catch up and then some with SOCAN. NRCC will also greatly benefit from the banishment of old foreign recordings and their replacement with newer Canadian product. Needless to say, most if not all of these extra tariff costs will go to the commercial music interests that CBC will now actively promote and play at taxpayers’ expense.

Even though SOCAN takes in well over $200 million a year, very little of this money goes to serious music composers in Canada. Many of the best known names in Canadian serious music (at least they were well known up until last year when CBC management cut the much loved and acclaimed “Two New Hours” show) earn barely enough money from SOCAN to cry in their beer, and only a few beers a year at that.

One hears that even very well known “serious” composers in Canada are earning well under $10,000 a year from SOCAN - many less than $100 a year. Much of these meagre amounts come from outside Canada because SOCAN’s distribution rules have greatly hurt serious composers since the merger of CAPAC and PRO into SOCAN was allowed in 1990. This is the way the copyright system works in Canada. It rewards commercial success and has nothing to do with merit or artistic importance. This is not the case in Europe which has “cultural funds” institutionalized in the collective system. Indeed, Europe still has magnificent public radio networks and radio orchestras. The BBC alone has five orchestras and the BBC Singers. There are many great radio orchestras on the continent.

It is true that the world has survived admittedly more drastic cultural revolutions. However, even so, what is happening on Front Street at CBC headquarters is still very disturbing.

Moreover, bad as this is, some are cynical enough to see the possibility of an even bleaker future unfolding than is now apparent. This could entail the possibility that, in the longer term, Canadian listeners/taxpayers will become so turned off that they will beg to eliminate or privatize CBC radio. Then, in typically Canadian fashion, the Government might even end up having to pay an opportunistic party to take over the surely very large liabilities for salaries, severances, and other items that the accountants and lawyers will surely come up with. We could then see a national version of Moses Znaimer’s CFMZ.

Enough said. Whatever happens, Canadian taxpayers will soon end up paying much more for much less.The current disaster in Canada is easily reversible with appropriate changes by or, if necessary, in and to CBC management. This must happen as soon as possible.

By the way, Ben Heppner grew up in Dawson Creek, somewhere in northeastern B.C. He won the CBC Talent Festival (which no longer exists) in 1979. This launched his career. How will the next Ben Heppner develop? He is one of many wonderful CBC stories. There might have been many others. But they won’t be told because they will now never happen.

Howard Knopf is an Ottawa cultural curmudgeon, former CBC recording artist, formerly fervent CBC Radio Two listener, and copyright lawyer.

The Hill Times

Monday, April 14, 2008

CBC, Copyright and the Canadian Cultural Revolution

This is for those who care about the decimation and devastation of classical and serious music now underway at CBC Radio Two, Canada's once proud national and entirely subsidized radio network that used to be devoted to non-commercial and culturally important content.

The CBC has a long standing tradition of “negotiating” its tariff obligation with SOCAN rather than rolling up its sleeves and actually going to the Copyright Board for a contested hearing. SOCAN is probably much better at this game than CBC. The bottom line is that CBC at last report was paying something in the order of $1.5 million a year to SOCAN as of 2005 for its radio activity alone (to be exact, $1,486,836 for 2005) - for the use of repertoire that historically has included quite a lot of public domain classical music. According to Canada’s Copyright Board, in 1998 the percentage of “protected” music played on CBC radio overall was somewhere between 21% and 24% of its broadcast day. Clearly, this percentage will now rise substantially.

Whatever calculus may have been in place will likely now change. Someone will probably do some scribbling on the back of an envelope and suggest that CBC should double or treble or more that amount of $1.5 million a year in view of the fact that the dreaded dead white European male composers who have been deceased for more than 50 years will be taking up very little time now on the five hours a day of “classical”music permitted during the middle of the day on Canada’s subsidized national radio network. CBC will likely agree, rather than offend Canada’s commercial music elites and have to go the trouble of actually having a hearing at the Copyright Board, which it hasn’t done for a very long time. CBC in fact now seems to be pandering to Canada’s commercial music elites in a very big way.

So the saving of somewhere between $300,000 and $1,000,000 realized from killing off the CBC Vancouver Radio Orchestra will likely soon vanish in increased SOCAN payments alone. Not to mention NRCC - the record companies’ and performers’ collective that is trying to play catch up with SOCAN and which will also benefit from the banishment of the dreaded dead white European male composers’ music and recordings of old and/or foreign orchestras and other “classical” ensembles - but in ways that are rather more complex than this brief comment allows for.

And needless to say, most if not all of these extra tariff costs will go the commercial music interests that CBC seems to think require subsidized airing on Radio Two.

I’m going to do more on this. If anyone cares to let me privately know what they think about SOCAN’s treatment of serious music composers in Canada, I’m all ears.

HK