Recorded Music Makers and Performers Achieve Public Performance Parity (Sort Of)

On May 26, 2012, the Copyright Board of Canada released Re:Sound’s certified Tariff No. 5 (Use of Music to Accompany Live Events, 2008-2012), which covers the use (i.e., the public performance or communication to the public by telecommunication) of recorded music at “live events”, and which entitles Re:Sound to collect the “equitable remuneration” to which owners of sound recordings and performers on those sound recordings are entitled for such uses.  Whereas previously only the owners of the copyright in the compositions were entitled to be paid for such uses, Re:Sound’s Tariff 5 means that all owners of a copyright interest in the “music” (meaning the composition and the sound recording) are entitled to payment of some kind.  The Board’s reasons can be found here.

The tariff covers a wide range of activities at which music can be used: receptions (including weddings), conventions, assemblies, fashion shows, karaoke bars, festivals, exhibitions, fairs, circuses, ice shows, fireworks displays, sound and light shows, parades, and activities taking place in parks, streets and “other public areas”.  So, for example, the owners of a hotel or banquet hall at which a wedding reception featuring a DJ takes place will be obliged to obtain (and pay for) a Re:Sound license – as will, say, a community organization hosting a “street party” at which recorded music is played over a loudspeaker system.

The certification of Tariff 5 brings the owners of “neighbouring rights” in sound recordings into rough parity with the owners of copyrights in the compositions embodied on those sound recordings (whose interests are represented by SOCAN through a variety of tariffs) in terms of the entitlement to receive compensation – that being said, the actual amount of the compensation remains different (and lower for neighbouring rights holders), consistent with previous Copyright Board decisions.  Generally speaking, the Re:Sound rate ranges between 45-84% of the SOCAN rate payable under comparable tariffs.

The tariff and the Board’s reasons are worth reading (not least for the endlessly charming ways in which tariffs are set – “parades”, for example, pay a “per float” fee (for those interested, the rate is $4.39 per float featuring recorded music).  The Board also takes pains to stress that Re:Sound’s Tariff 5 applies only to events at which “foreground” music is used, and that “no event at which only background music is used should be subject to it” [para. 35].  In addition, the Board has countenanced a sharing of information between Re:Sound and SOCAN in connection with the collection of royalties and the enforcement of the tariff [para. 52].

The Board estimated that the tariff will result in $1,832,458.48 in total “royalties” for 2008 (the first year for which the tariff was certified) [Table 5], and offers the following handy table of concordance between Re:Sound and SOCAN tariffs:

Re:Sound Tariffs and Corresponding SOCAN Tariffs
Re:Sound Tariff SOCAN Tariff
5.A (Recorded music accompanying live entertainment in cabarets, cafes, clubs, restaraunts, roadhouses, taverns and similar establishments 3.B (Recorded music accompanying live entertainment
5.B (Receptions, conventions, assemblies and fashion shows) 8 (Receptions, conventions, assemblies and fashion shows)
5.C (Karaoke bars and similar establishments) 20 (Karaoke bars and similar establishments)
5.D (Festivals, exhibitions and fairs) 5.A (Exhibitions and fairs)
5.E (Circuses, ice shows, fireworks displays, sound and light shows and similar events) 11.A (Circuses, ice shows, fireworks displays, sound and light shows and similar events)
5.F (Parades) 10.B (Marching bands; floats with music)
5.G (Parks, streets and other public areas) 10.A (Strolling musicians and buskers; Recorded music)
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Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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