Copyright Modernization Act introduces several changes to the right of performers and sound recording makers in s. 19 of the Copyright Act.

Section 19(1) used to vest in performers and makers of sound recordings a right to be paid equitable remuneration for public performance of sound recordings that have been published and for their communication to the public by telecommunication, the only exception to that being made in the case of retransmission.

The Copyright Modernization Act adds another exception, which, honestly, I find utterly incomprehensible. I will quote it in full and then make a few comments:

If a sound recording has been published, the performer and maker are entitled, subject to subsection 20(1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for

(a) a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a), if the person entitled to the equitable remuneration is entitled to the right referred to in those paragraphs for that communication;…

And then we wonder why people frown upon the legalese.

To use the word “entitled” three times in different contexts in the same section of the Act requires some sophistication, I’m sure.

The first one quite clearly refers to the entitlement to be paid equitable remuneration.

The second one refers to “the person entitled to the equitable remuneration”, i.e. the performer and the maker of a published sound recording.

The third one refers to the entitlement to the making available right, referred to in paragraphs 15(1.1)(d) and 18(1.1)(a). Paragraphs 15(1.1)(d) and 18(1.1)(a), as you may recall from my comments on new subsections in Section 15 of the Copyright Act, are about distilling the making available right back from the general right of communication to the public by telecommunication, into which the making available right was merged by virtue of s. 2.4(1.1) of the Act.

So what the new s. 19(1)(a) is trying to say is that performers and makers of sound recordings are entitled to equitable remuneration for communication of the sound recordings to the public by telecommunication, except for situations when the sound recording is made available over the Internet.

I can understand a policy decision to only recognize an entitlement to equitable remuneration in respect of some forms of use and not others.

I can’t understand two things:

1. Why it is that the provision could not be written in a clear language?

2. What was the purpose of blending the making available right into the communication to the public right if for all meaningful intents and purposes it is treated differently in the Act? It’s not a case when a court is forced to interpret the law as it exists. The Copyright Modernization Act was supposed to be the most important reformulation of Canadian copyright laws in years. It’s a lesson from the first year law school legal interpretation class: don’t use the same term to refer to two distinct notions. If you plan to have separate rules for cats and dogs, don’t add a provision stating that for the purposes of the Act, a “cat” also includes a “dog”.

BOTTOM LINE: Bad. Incomprehensible language. Inconceivable why the term “communication to the public by telecommunication” that “for the purposes of the Act” was supposed to assimilate the making available right doesn’t cover the making available right for the purposes of s. 19(1).