SCC to Rule on Movie Soundtracks

In the appeal of Re:Sound v. Motion Picture Theatre Associations of Canada, the Supreme Court of Canada will be called upon to determine whether there is a right to equitable remuneration under section 19 of the Copyright Act when a pre-existing sound recording is incorporated in the soundtrack that accompanies a motion picture or a television program. The Copyright Board of Canada decided that there is no such right in this situation, and the Federal Court of Appeal dismissed the application for judicial review.

Section 19 of the Act provides that, where a sound recording has been published, the performer and maker are entitled to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication. The Act defines a “sound recording” as follows:

“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]

Re:Sound is a collective society authorized by the Copyright Board to collect equitable remuneration under section 19. Re:Sound’s predecessor, which had filed two tariff proposals, argued that a “soundtrack” is the aggregate of all the compiled sounds on the soundtrack. By this logic, the soundtrack as a whole would be excluded from the definition of a “sound recording,” but a pre-existing sound recording, which constitutes only part of the soundtrack, would not be excluded.

Decisions Below

The Copyright Board disagreed and indicated that this argument “requires adding words to the definition such as ‘aggregate’ or ‘any part of a’ before ‘soundtrack.’” Applying principles of statutory interpretation and considering certain aspects of the Act’s legislative history, the Copyright Board interpreted the exclusion to mean that a pre-existing sound recording is not a “sound recording” — and thus does not give rise to a remuneration right under section 19 — when it is incorporated in a movie soundtrack.

At the same time, the Copyright Board noted that a pre-existing sound recording may not be so incorporated without its maker’s consent and that the right to remuneration under section 19 would still apply to the pre-existing sound recording when it is performed on a stand-alone basis (i.e., not as an accompaniment to a movie).

The Federal Court of Appeal agreed with the Copyright Board and addressed, in particular, concerns raised by the applicant that the Copyright Board’s decision did not sufficiently protect the rights of performers and makers of sound recordings. Like the Copyright Board, the Federal Court of Appeal observed that:

… an unauthorized embodiment of a performance in a cinematographic work contravenes the Act. Moreover, once a prior sound recording is extracted from the soundtrack that accompanied the cinematographic work, it again attracts the protections offered performers and makers under the Act for stand-alone sound recordings.

Potential Significance

The Supreme Court of Canada’s ruling in this case will clarify the meaning of “soundtrack,” a term not defined in the Act, and will be of interest to artists and record companies across Canada.

Case Information

Re:Sound v. Motion Picture Theatre Associations of Canada, 2011 CanLII 56031 (SCC)

SCC Docket Number: 34210

Date Leave Granted: September 8, 2011

artists cinematographic work Copyright Board Federal Court of Appeal performers record companies sound recordings soundtrack Supreme Court of Canada tariff

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