*Intellectual Property Rights as related to Musical Composition
OVERVIEW
The copyright information provided here, is intended to provide a layman’s overview of general copyright principals, as they might relate to your musical endeavours. Please bear in mind that we are musicians and not lawyers, so for any important decisions related to intellectual property rights, you should consult proper legal council.
WHAT IS COPYRIGHT?
The term, “Copyright” (also known as, Intellectual Property Rights) and the “registration” of copyright, as it relates to original musical works, can be confusing, so our goal is to provide some basic information in order to assist you to understand, and thus more easily navigate this complex part of the musical landscape.
In the context of musical copyright, you may have heard the terms, copyright, mechanical licensing and performance rights, but these all refer to different aspects of ownership and/or the use of protected intellectual property.
The Canadian Intellectual Property Office defines “copyright” as follows: “Copyright is the exclusive legal right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work. The creator is usually the copyright owner.” https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html#copyrightDefined
In countries subscribing to the Berne copyright convention, any original “work” is automatically copyrighted at the moment of conception, and this copyrighted “work” is protected for the life of the original author, plus a minimum of 50 years after their death.
In the most simple terms, copyright protection for a creator, means that others cannot freely use that author’s intellectual property without their expressed written consent; although the original creator may also have certain other exclusive rights, such as (but not limited to) the “right of first release” (the latter which allows the author to be the first to publish a work, or to assign this right to anyone of their choosing)
COPYRIGHT VIOLATION PENALTIES
Violation of copyright is a criminal offence and can lead to prosecution, with severe penalties that include both substantial fines and jail-time.
MECHANICAL LICENSING
In order to legally record and distribute any copies of a song that you did not write, you will need to secure a “mechanical license” and pay the original author and/or his publisher, a small statutory fee of approximately 10¢ per copy that you create .
While typical “fair use” of a copyrighted song might include the ability to record your own version or arrangement of this original “work” (after securing a “Mechanical License”) copyright owners of sound or video recordings have the exclusive right to refuse you permission to copy, sample or use their recordings in anything you create, and/or to also prevent you from synchronizing your own (legal) audio version of their song to video or film.
For more detailed information on mechanical licensing, see this link: https://summitsound.com/mechanical-licensing/
PUBLIC DOMAIN WORKS
Songs published before 1924 in the USA, or written by an author who has been deceased for more than 50 years (75 years in some countries)) are considered to be in the public domain (PD) and as such generally do not require you to obtain a license to record them.
A notable exception to this, would be PD songs for which new “arrangements” have been copyright-protected, and thus would then require you to secure a mechanical license for the use of that arrangement.
NOTE: Laws are currently changing in some countries on the length of time after an author’s death before a song enters the public domain, so be sure to check current regulations that may apply.
BERNE COPYRIGHT CONVENTION
Copyright law in most of the world subscribes to the Berne Copyright Convention which was established in 1886. (Now administered by WIPO) You can learn more about the World Intellectual Property Organization or WIPO at this link: https://www.wipo.int/copyright/en/
COPYRIGHT REGISTRATION
As copyright applies to musical works, if you write a song or create a sound or video recording (or other artistic endeavour), you can choose to officially “register” your copyright in your country of origin, and this “claim” of your intellectual property rights will then be honoured and protected by all countries who subscribe to the Berne Convention.
In Canada, the USA and in other co-operating Berne Convention countries, any artistic creation is actually copyrighted at the moment of conception, (without you doing anything else) but you may also choose to “register” your copyright in Canada at: https://www.canada.ca/en/services/business/ip/copyright.html or in the USA at: https://www.copyright.gov/ by paying the associated fees and receiving your official copyright registration documentation for that original work. This would also mean that your (registered) copyright would then be added to official worldwide copyright database(s) indicating your authorship.
COPYRIGHT VALIDATION
While “registration” of your copyright may be essential should you ever need to enter into legal proceedings to protect your intellectual property; of equal importance, is the ability to “validate” your copyright, as “registration” (depending upon the procedures in the country where you register) may not be adequate on it’s own, to prove your ownership in the absence of additional documentation that “validates” the music and lyrical content, as well as the date of creation.
Typically, for a court-of-law in any country to consider a copyright case, one of the parties must have officially “registered” their copyright in the country where the attending court presides. However, many experts agree that an “official” Canadian copyright registration is actually no guarantee that you could win a court battle to prove your intellectual property rights, unless you can also produce other supporting evidence validating your ownership claim. This is particularly true in Canada, since the copyright department does not archive a copy of your work, or even listen to it at all. On the other hand, the US Library of Congress does file a copy of your work in their archives, so is considered by many to be a more effective process than Canadian copyright registration.
MAILING COPIES TO YOURSELF
You may have heard that creators of original musical works often choose to mail a copy of their song, poem, CD etc. to themselves to help to “validate” their ownership. While this does NOT constitute an official copyright “registration” it may still have value, but only if done by REGISTERED mail. (…with the name of the work it contains written on the back, and the envelope left sealed until officially entered into evidence in the court) This way, the date and contents can be verified by a judge as not having been tampered with (based upon your original receipt and signature at the post office). Listing the contents on the back of the envelope may be critical if you collect several envelopes over an extended period of time, since opening the wrong document in court would then jeopardize future use of the contents of that envelope as copyright evidence.
OTHER METHODS TO VALIDATE COPYRIGHT
Beyond an official copyright “registration” any additional mechanism(s) that you can employ to provide further evidence of your ownership and date of creation, is also recommended to further validate your copyright ownership.
Recording your song in a professional studio (such as Summit Sound) where you have a dated invoice for the work done and/or releasing your song to the public on CD, vinyl etc. and then serving notice of your copyright ownership on the cover (i.e. © 2020 John Doe) are both useful ways to validate intellectual property ownership of a song and/or an entire album project. Even if you were to perform a song live and introduce it by saying you wrote it, anyone in attendance at that event could later be supoenaed to provide testimony in court that they saw you perform that “original” work on that specific date.
Oddly, in Canada, the copyright department will issue an official copyright registration, and SOCAN will issue a performance rights registration, based upon a song title only; having never checked, seen or heard your song! (This is despite the fact that song titles themselves are not even copyrightable) This is why many entertainment attorneys suggest that an official Canadian copyright “registration” is not enough to “validate” your intellectual property claim, unless combined with some other (date-stamped) process that also archives a physical copy of your musical work; thus proving your authorship.
SONGWRITER ARCHIVAL SERVICES
If you look on the “Links” page on our website at: https://summitsound.com/links-2/ you can find several songwriter associations who may offer additional means to validate and/or archive your original musical work(s).
As previously mentioned, the US Library of Congress also archives all works submitted to them for copyright registration.
PERFORMANCE RIGHTS
While “copyright” defines ownership of a musical work, “performance rights” simply protect the rights of copyright owners, pertaining to the public performance of these same original “works”
Registering your song with a “Performance Rights” organization is thus essential to ensure that you can collect appropriate royalties for it’s use in public performances by yourself or others, (ie. live concerts, streaming, radio air-play, background music etc.) but it could also serve as one more valuable piece of evidence you could add to your arsenal of “validations” of your copyright for any specific work.
Membership in a performance rights organization is usually free, but in Canada SOCAN is your only performance rights affiliation option. If you are a US citizen, you can choose between ASCAP, BMI or SESAC to administer your performance rights. These P.R.O.’s in different jurisdictions, also co-operate to protect your rights outside your own country. Links to these North American P.R.O.’s can be found on our Summit Sound website at: https://summitsound.com/links-2/
COPYRIGHT DISPUTES
Since there are only seven notes in a western music scale, there are a limited number of combinations of notes possible in any song, so while the melody of two songs might actually sound nearly identical, this in itself, might not constitute copyright infringement.
If seeking damages for (intentional) copyright infringement, one would need to prove “intent” to defraud or defame the original author; but proving the “intent” of someone else, can be daunting. If on the other hand, someone blatantly stole your song, and then listed themselves as the original author, but you could prove that they had access to a copy of this same song before claiming ownership, you might then be able to prove they intentionally defrauded your intellectual property rights.
It is also important to have a written agreement with any co-writers you might work with, to avoid the potential for any future misunderstandings about percentages of copyright ownership.
EVIDENCE, EVIDENCE, EVIDENCE
In the final analysis, it seems that once a copyright case enters the legal system, regardless of who actually holds the official copyright “registration”, the party with the most credible evidence to “validate” their ownership, is then most likely to win in court.
CANADIAN COPYRIGHT – LEGAL CASE HISTORY
It is our understanding that in the history of Canadian copyright law, there has only been one case of song-copyright infringement that actually went to court in Canada (in 1980). The disputed song was, “The Homecoming” and the plaintiff in that case was unsuccessful. This doesn’t necessarily mean that other songs have never been stolen in Canada, but might suggest that often there either isn’t enough evidence to go to court, or that the high cost of defending copyright ownership in the courts is just too expensive to make this pursuit of justice worth the effort (unless the song in question is a big “hit”.)
COPYRIGHT SUMMARY
As the creator of any original work, in order to fully protect your intellectual property rights, it is best practice to use every reasonable means to register and validate your copyright(s) and you should never attempt to use material that is the intellectual property of anyone else, without their written permission.
*LEGAL DISCLAIMER:
© 2020 Summit Sound Inc. The copyright information provided here, is not intended to replace proper legal advice. Everything on this page is presented as part of a general copyright discussion and comes from a variety of potentially unverified sources. For any matter involving Copyright or Intellectual Property Rights, we recommend that you consult qualified legal council.