Canada: Performers And Makers Of Film Soundtracks Not Entitled To Broadcast Royalties

In a ruling issued July 12, 2012, the Supreme Court upheld the decisions of the Federal Court of Appeal and the Copyright Board in Re: Sound v. Motion Picture Theatre Associations of Canada, concluding that performers and makers of sound recordings are not entitled to royalties for the broadcast of their recordings in film or on television as part of a movie soundtrack.

Under section 19 of the Copyright Act, performers and makers of sound recordings are entitled to remuneration when their recordings are performed or telecommunicated to the public. However, the section 2 definition of "sound recording" excludes a "soundtrack of a cinematographic work where it accompanies the cinematographic work." "Soundtrack" is not defined, but the appellants had argued that it means the whole aggregate of sounds accompanying the film, and not the individual pre-existing sound recordings incorporated into the soundtrack. They contended, therefore, that royalties should be collected when those recordings are broadcast as part of a film's soundtrack.

In its analysis, the Court found that the ordinary meaning of "soundtrack" includes pre-existing sound recordings. These recordings, then, would be captured within the section 2 exclusion, absent a clear contrary expression of intent by Parliament. The Court also noted that this interpretation is supported by the legislative history of the Act, particularly comments made at the Standing Committee on Canadian Heritage.

The Court rejected the appellants' arguments that the Copyright Board's decision is incompatible with Canada's obligations under the Rome Convention, pointing out that the Rome Convention contemplates only protection of "exclusively aural fixation of sounds." The Court also discounted the precedential value of Australian and U.K. jurisprudence because of significant differences in wording between Canadian and foreign copyright laws.

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