Musicians’ Rights Organization Canada (MROC)

Submission to the consultation on a modern copyright framework for online intermediaries

Submission Date: May 31, 2021

The Musicians’ Rights Organization Canada (MROC) welcomes this Government’s initiation of the Consultation on a Modern Copyright Framework for Online Intermediaries, and the stated objective to protect and encourage the use of copyright-protected content online.

As background and to use the terms of the Copyright Act, MROC is a collective society. Since 2009^{Footnote 1}, MROC has worked to ensure our mandating performers receive neighbouring rights (i.e., equitable remuneration in the Act) and private copying royalties for their sound recordings. We represent more than 12,000 musicians, from session players to symphony musicians to featured artists, recording across the full range of genres.

Representing such a diverse group of musicians, we have a broad understanding of the impact that digital markets and the use of copyright content online has had on them. It has become harder and harder for most musicians to make a living from more traditional revenue streams and every stream of revenue they can access has become increasingly important. But exercising their rights to be compensated for use of their recordings online is a Herculean task. We therefore wholeheartedly support a collective licensing approach to managing remuneration from online intermediaries.

However, the Copyright Act already undermines the benefits that can accrue to creators through collective licensing in some key areas. In particular, MROC would like to see the following deficiencies in the Act addressed:

• Make the private copying regime technologically neutral. While streaming has become many Canadians’ method of choice for listening to music and few copies of music are made onto physical media, the Canadian Private Copying Collective’s research has shown that millions of unlicensed copies of sound recordings continue to be made onto phones and tablets. Yet the Act does not provide for remuneration to creators for such copying. (We refer you to the CPCC’s submission for further background.)
• Remove the $1.25 million exemption from equitable remuneration for commercial radio stations. The existence of this exemption exacerbates the inequity between users and creators and has made Canada an outlier in the international community. This exemption has cost the creative community more than $162 million in lost royalties over the last 25 years. (We refer you to Re:Sound’s submission to this consultation for further background on this failing in the Copyright Act.)
• Change the definition of “sound recording”. Under the Act, performers and record labels (makers) currently receive no compensation when films and television programs incorporating sound recordings are broadcast or communicated to the public. Yet authors are entitled to compensation under the Act. In 2012, the Supreme Court of Canada ruled that performers and makers were not eligible for compensation solely on the basis of the existing definition of sound recording, and not the legitimacy of their claim. This restrictive definition of “sound recording” costs performers and record labels between $50-$100 million in royalties annually. (Again, we refer you to Re:Sound’s submission for further information).

We look forward to the next steps in this Consultation and to changes that will ensure fair compensation to creators in digital markets and protection of their copyright content. We note that many of the recommendations above allow for market-based solutions, without cost to the Government or individual taxpayers.

Thank you for the opportunity to make this submission. If you require more information, please contact Diana Barry at dbarry@musiciansrights.ca.