It is presumably meant to be an illustration of the fact that a musical composition embodied in a sound recording may be in the public domain while the sound recording may still be protected by copyright, or vice versa. That may not be totally obvious to everyone. So far, so good – at least in theory.
2015, c. 36, s. 82No revival of copyright82 Paragraph 23(1)(b) and subsection 23(1.1) of the Copyright Act, as enacted by section 81, do not have the effect of reviving the copyright, or a right to remuneration, in a sound recording or performer’s performance fixed in a sound recording in which the copyright or the right to remuneration had expired on the coming into force of those provisions. (highlight added)
…. Even if it is only one person or FTE equivalent who works on these files, I would respectfully suggest that this is one person too many. One person year (FTE) per year since 1989 translates at a probably conservative cost estimate of $75,000 per year, including benefits, to about $1,875,000 to date for a process that was clearly absolutely unnecessary in at least 19% of the files and probably a great deal more (perhaps involving insubstantial copying or fair dealing?) – even under the existing legislation. To the extent that more senior staff, including legal staff, and Board members themselves, may have gotten involved, the real cost may have been substantially more. The Board itself recently states that “a target of 45 days was set between the file completion date and the issuance of the licence”. This suggests that a lot of time may be spent on these files.
The Board may have well spent more than $2 million of public money to direct about $75,000 or so to collectives through about 277 licenses in circumstances where the collectives have generally nothing to deserve this little windfall. It should be pointed out that collectives, as required by s. 67 of the Copyright Act "must answer within a reasonable time all reasonable requests from the public for information about its repertoire of works, performer’s performances or sound recordings, that are in current use."
The Board could easily provide a useful service to the public by updating its website on providing guidance as when a license is NOT needed in the case of an unlocatable copyright owner. As of now, the Board has apparently not updated its website since 2001 on this issue – and thus ignores several key Supreme Court decisions and legislative changes since then. The Board still continues to suggest that:
"You also do not need a licence if the intended use is not protected by copyright. There are a few specific exceptions to the copyright owners' exclusive right to authorize the use of their works "or any substantial part thereof in any material form whatever". For instance, fair dealing for the purposes of research or private study is allowed. So is copying of sound recordings for a person's own private use. However, the courts tend to interpret these exceptions restrictively."(highlight added)
Quite apart from the inexplicable reference to private copying, the above material was dubious in in 2001, when the Board’s website on this subject was apparently last modified. It has been clearly very wrong ever since the Supreme Court's landmark 2004 ruling in CCH v. LSUC which confirmed that “Research” must be given a large and liberal interpretation in order to ensure those users’ rights are not unduly constrained.”
The statement is even more blatantly wrong since the SCC’s “pentalogy” decisions in 2012 and the inclusion of “education”, “parody” and “satire” in the fair dealing provisions of the legislation. It should not take more than a few minutes of the time of one of the Board’s four lawyers to update this page by providing, at the very least, links to the current statutory framework as found in s. 29 of the Copyright Act and the three Supreme Court of Canada decisions on fair dealing plus the Cinar decision rendered since 2004 and indicating how these decisions are relevant.
Sections 29 to 29.2 of the Act provide a number of exceptions by which it is possible to use a work without authorization. They are fair dealing for the purpose of research, private study, education, parody, satire, criticism or review and news reporting. What constitutes fair dealing is determined in conformity with criteria established by the courts that are related to the purpose, character and amount of the dealing, the alternatives, the nature of the work and the effect of the dealing on the work.
Courts have interpreted these exceptions as a user’s right. Some of these exceptions require certain conditions to be met (for example the mention of the source for a criticism, review or news reporting)
“If you think that you don’t need a licence for the use you intend to make, you could choose to obtain legal advice to confirm that one of the above-mentioned situations applies to you.”
*PS: Update September 21, 2016. I've been alerted to the fact that the Stargrove case at the Competition Tribunal has been settled: