Pre-existing Sound Recordings Incorporated into Soundtracks are not “Sound Recordings” Under the Copyright Act

Published July 30th, 2012

Re:Sound v. Motion Picture Theatre Associations of Canada et al., 2012 SCC 38

Summary A soundtrack to a movie or other cinematographic work is not a “sound recording” as defined under section 2 of the Copyright Act (the “Act”).  Such works are, in fact, specifically excluded from this definition and cannot be subject to a tariff to collect royalties on behalf of performers under section 19 of the Act when the works are communicated to the public.  In a unanimous decision, the Supreme Court of Canada (“SCC”) has held that pre-existing sound recordings that are subsequently incorporated into soundtracks are also covered by the statutory “soundtrack” exclusion.

Background The Appellant, a copyright collective, filed two tariff proposals for approval from the Copyright Board (the “Board”) to obtain royalties for use of sound recordings in movies shown by movie theatres and sound recordings in programs broadcast by organizations offering television services.  The Board denied approval of the tariffs on the basis that there was no support for the tariffs under the Act.  The Federal Court of Appeal upheld the Board’s decision.

Analysis The SCC held that copyright collectives, such as the Appellant, are allowed to collect royalties pursuant to tariffs lodged and approved by the Board for “sound recordings”, a defined term under section 2 of the Act.

However, the SCC found that, as the definition of “sound recording” expressly excludes “any soundtrack of a cinematographic work where it accompanies the cinematographic work”, copyright collectives could not collect royalties on soundtracks that were played along with movies, television programs or any other cinematographic work, even if they were pre-existing sound recordings (that are only a part of the soundtrack).  The Appellant was unsuccessful in arguing that the exclusion only applied to the whole soundtrack.  According to the SCC:  “[t]he Act does not specify that a pre-existing recording of ‘sounds’ that accompanies a motion picture cannot be a ‘soundtrack’ within the meaning of s. 2 … a pre-existing sound recording cannot be excluded from the meaning of ‘soundtrack’ unless Parliament expressed an intention to do so in the Act … by, for example, excluding only ‘the aggregate of sounds in a soundtrack’.” (para. 36)  It was noted however, that pre-existing sound recordings that are extracted from the soundtrack that accompanied the cinematographic work and exploited separately from the cinematographic work would be considered “sound recordings”, and subject to collection of royalties and other protections offered under the Act.

Foreign jurisprudence relied upon by the Appellant was deemed irrelevant by the SCC because corresponding provisions governing “sound recordings” in these jurisdictions were significantly different from the Act and specifically referred to “aggregate” of sounds.  In addition, the Act was not found to be contrary to the terms of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations which allows performers to obtain royalties on all phonograms and which defines phonograms as an “exclusively aural fixation of sounds of a performance or other sounds”, because soundtracks accompanying cinematographic works are by definition not exclusively aural in nature.

Practice Point The SCC applied a “plain meaning” purposive interpretation, considered legislative history, and arguably broadly interpreted the “soundtrack” exclusion” of the Act to include any part of the sound recording in a cinematographic production.  This decision also repeats the warnings in other SCC decisions released the same day that foreign copyright jurisprudence is of no assistance as there are dissimilarities between foreign and domestic legislation.


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