Re:Sound v Motion Picture Theatre Assns of Canada, 2012 SCC 38, is a Supreme Court of Canada case that confirmed that pre-existing sound recordings accompanying a cinematographic work are part of a soundtrack and are therefore excluded from equitable remuneration under the Copyright Act of Canada.[1] The decision was unanimous decided by the court on July 12, 2012.
Re:Sound is a collective society authorized by the Copyright Board of Canada ("Board") to collect equitable remuneration pursuant to s. 19(1) of the Act for the performance in or communication to the public by telecommunication of published sound recordings of musical works.[2]
The case arose due to two proposed tariffs (Tariffs 7 & 9) filed by Re:Sound under s. 67.1(1) of the Copyright Act (the "Act"). Tariff 7 proposed an entitlement for royalties to Re:Sound for the use of sound recordings embodied in a movie by motion picture theatres and other establishments exhibiting movie. Tariff 9 targeted the use of sound recordings in programs broadcast by commercial over the air, pay, specialty and other television services.[3] Re:Sound is entitled to collect tariffs on behalf of performers and makers of sound recordings when their recordings are performed in public or communicated to the public telecommunication under s. 19(1) of the Act.[4]
The respondents argued that the proposed tariffs must fail because the Act's definition of "sound recording" explicitly excludes soundtracks of cinematographic works.[5]
Re:Sound submitted that the definition of "sound recording" does not exclude a pre-existing sound recording that is incorporated into a soundtrack. Rather, it argued, the purpose of the exclusion was to create a hybrid right that combined visual and audio features to create new rights in a "cinematographic work".[6]
Issueedit
The issue in the appeal was whether pre-existing sound recordings incorporated into a soundtrack fall within the meaning of the undefined term "soundtrack" used in the definition of "sound recording" in s. 2 of the Act?[7]
Holdingedit
The court unanimously agreed with the lower courts and the Motion Picture Theatre Associations of Canada that "soundtrack" includes pre-existing sound recordings and that such recordings are excluded from the definition of "sound recording" when they accompany a cinematographic work.
Analysis by the courtedit
The court stated that there was no legislative intent to exclude pre-existing sound recordings from the definition of "soundtrack" and thus Re:Sound was not entitled to equitable remuneration under s. 19(1) of the Act.[8]
Statutory interpretationedit
The relevant sections of the Act read:
"2. In this Act, . . . "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;"[9]
"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.
(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; . . ."[9] [emphasis added]
LeBel J, writing for the court, stated that the exclusion in the definition of sound recording for "any soundtrack of a cinematographic work" would be superfluous if a "soundtrack" was considered a "sound recording" when it accompanies a cinematographic work.[10] It follows that such a soundtrack does not trigger the application of s. 19(1) because it is not a "sound recording" as defined in the Act.
For a soundtrack to be eligible for exclusion from equitable remuneration under s. 19(1) it must accompany the cinematographic work. Therefore, if a pre-existing recording is extracted from the cinematographic work (such as in the case of a CD soundtrack for a film) the pre-existing recording regains its ability to trigger s. 19(1) equitable remuneration.[11]
Comparative law and international rulesedit
The court held foreign statutory definitions of "sound recording" which include the concept of "aggregate of sounds" were sufficiently different, leading to little persuasive weight of cases from foreign jurisdictions.[12]
Re:Sound also argued that the Act is incompatible with the Rome Convention on the basis of Article 10 which provides that "[p]roducers of phonograms shall enjoy the right to authorise or prohibit the direct or indirect reproduction of their phonograms".[11] The court states that the definition of "phonogram" in the Rome Convention includes only "specific aural fixations of sounds" and thus once the sound recording accompanies a cinematographic work it is no longer governed by Article 10. If the sound recording were extracted from the cinematographic work, it would once again be protected, which is consistent with Article 10.[13]
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Re Sound v Motion Picture Theatre Assns of Canada 2012 SCC 38 is a Supreme Court of Canada case that confirmed that pre existing sound recordings accompanying a cinematographic work are part of a soundtrack and are therefore excluded from equitable remuneration under the Copyright Act of Canada 1 The decision was unanimous decided by the court on July 12 2012 Re Sound v Motion Picture Theatre Assns of CanadaSupreme Court of CanadaHearing December 7 2011 Judgment July 12 2012CitationsFull text of Supreme Court of Canada decision available at LexUM and CanLIIPrior historyAppeal from the Federal Court of Appeal 2011 FCA 292RulingAppeal dismissed Court membershipChief Justice Beverley McLachlinPuisne Justices Louis LeBel Marie Deschamps Morris Fish Rosalie Abella Marshall Rothstein Thomas Cromwell Michael Moldaver Andromache KarakatsanisReasons givenMajorityLeBel J joined by McLachlin C J and Deschamps Fish Abella Rothstein Cromwell Moldaver and Karakatsanis JJ Contents 1 Background and facts 2 Issue 3 Holding 4 Analysis by the court 4 1 Statutory interpretation 4 2 Comparative law and international rules 5 See also 6 References 7 External linksBackground and facts editRe Sound is a collective society authorized by the Copyright Board of Canada Board to collect equitable remuneration pursuant to s 19 1 of the Act for the performance in or communication to the public by telecommunication of published sound recordings of musical works 2 The case arose due to two proposed tariffs Tariffs 7 amp 9 filed by Re Sound under s 67 1 1 of the Copyright Act the Act Tariff 7 proposed an entitlement for royalties to Re Sound for the use of sound recordings embodied in a movie by motion picture theatres and other establishments exhibiting movie Tariff 9 targeted the use of sound recordings in programs broadcast by commercial over the air pay specialty and other television services 3 Re Sound is entitled to collect tariffs on behalf of performers and makers of sound recordings when their recordings are performed in public or communicated to the public telecommunication under s 19 1 of the Act 4 The respondents argued that the proposed tariffs must fail because the Act s definition of sound recording explicitly excludes soundtracks of cinematographic works 5 Re Sound submitted that the definition of sound recording does not exclude a pre existing sound recording that is incorporated into a soundtrack Rather it argued the purpose of the exclusion was to create a hybrid right that combined visual and audio features to create new rights in a cinematographic work 6 Issue editThe issue in the appeal was whether pre existing sound recordings incorporated into a soundtrack fall within the meaning of the undefined term soundtrack used in the definition of sound recording in s 2 of the Act 7 Holding editThe court unanimously agreed with the lower courts and the Motion Picture Theatre Associations of Canada that soundtrack includes pre existing sound recordings and that such recordings are excluded from the definition of sound recording when they accompany a cinematographic work Analysis by the court editThe court stated that there was no legislative intent to exclude pre existing sound recordings from the definition of soundtrack and thus Re Sound was not entitled to equitable remuneration under s 19 1 of the Act 8 Statutory interpretation edit The relevant sections of the Act read 2 In this Act 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 9 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 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 9 emphasis added LeBel J writing for the court stated that the exclusion in the definition of sound recording for any soundtrack of a cinematographic work would be superfluous if a soundtrack was considered a sound recording when it accompanies a cinematographic work 10 It follows that such a soundtrack does not trigger the application of s 19 1 because it is not a sound recording as defined in the Act For a soundtrack to be eligible for exclusion from equitable remuneration under s 19 1 it must accompany the cinematographic work Therefore if a pre existing recording is extracted from the cinematographic work such as in the case of a CD soundtrack for a film the pre existing recording regains its ability to trigger s 19 1 equitable remuneration 11 Comparative law and international rules edit The court held foreign statutory definitions of sound recording which include the concept of aggregate of sounds were sufficiently different leading to little persuasive weight of cases from foreign jurisdictions 12 Re Sound also argued that the Act is incompatible with the Rome Convention on the basis of Article 10 which provides that p roducers of phonograms shall enjoy the right to authorise or prohibit the direct or indirect reproduction of their phonograms 11 The court states that the definition of phonogram in the Rome Convention includes only specific aural fixations of sounds and thus once the sound recording accompanies a cinematographic work it is no longer governed by Article 10 If the sound recording were extracted from the cinematographic work it would once again be protected which is consistent with Article 10 13 See also editList of Supreme Court of Canada cases McLachlin Court References edit Smart amp Biggar Case Summary Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at para 4 Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at para 5 Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at para 28 Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at para 6 Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at para 7 Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at para 25 Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at para 12 a b Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at para 30 Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at para 35 a b Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at paras 38 39 Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at paras 44 45 Re Sound v Motion Picture Theatre Associations of Canada 2012 SCC 38 at paras 48 50External links editFull text of Supreme Court of Canada decision available at LexUM and CanLII Retrieved from https en wikipedia org w index php title Re Sound v Motion Picture Theatre Assns of Canada amp oldid 704151113, wikipedia, wiki, book, books, library,
