Supreme Court to decide what is a ‘sound recording?’

The Supreme Court of Canada will have to answer that question in the case of Re: Sound v. Motion Picture Theatre Association of Canada after it was granted leave to appeal with costs.

The case arose when the applicant, Sound, filed two proposed tariffs for public performance of published sound recordings when used in movies shown in movie theatres and TV broadcasts. The respondents argued that the definition of “sound recording” in the Copyright Act excludes soundtracks from movies and TV shows: “‘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.”

The issue was taken to the Copyright Board, which ruled against the following question on Sept. 16, 2009: “Is anyone entitled to equitable remuneration pursuant to section 19 of the Copyright Act . . . when a published sound recording is part of the soundtrack that accompanies a motion picture that is performed in public or a television program that is communicated to the public by telecommunication?”

On Feb. 25, 2011, the Federal Court of Appeal upheld the board’s decision. In her ruling, Justice Johanne Trudel said: “According to the applicant, what is excluded from the definition of sound recording is the soundtrack as a whole, not its individual elements . . . the applicant believes that although no one can claim equitable remuneration for the whole soundtrack, the makers and performers of separate sound recordings embedded in the soundtrack can.”

In the midst of the dispute over the meaning of sound recording versus soundtrack, it will be up to Canada’s top court to work out this copyright tussle.

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