The Copyright Modernization Act introduced some changes to Section 23 of the Copyright Act, the section about the terms of protection of neighbouring rights (the rights in respect of performances, sound recordings and broadcasts) in Canada.

I will compare my interpretations of the old and the new versions side by side. I will then provide some comments about the amendments.

My first general comment is that one arbitrary term is now replaced by a set of other arbitrary terms. Whether it’s 50, 99 or 500 years is largely immaterial. There really is no reason for it to be one way or the other. Just another compromise not based on any principles.

Secondly, the amended version has several references to a time “before the copyright expires”. Unfortunately, no clarification is given whether the reference is to copyright in the underlying work, the performance or the sound recording. If I were to venture a guess, I would say that the references in the new s. 23(1) are to the copyright in the performance while the reference in the new s. 23(1.1) is to the copyright in the sound recording. I see no other interpretation that would be logically consistent. Clarity, however, is not one of the strong points of these amendments.

The biggest problem that I have with amendments to Section 23 is the wording relating to the term of protection of performances.

Let me take you back to the definition of a performer’s performance:

”performer’s performance” means any of the following when done by a performer:

(a) a performance of an artistic work, dramatic work or musical work, whether or not the work was previously fixed in any material form, and whether or not the work’s term of copyright protection under this Act has expired,

(b) a recitation or reading of a literary work, whether or not the work’s term of copyright protection under this Act has expired, or

(c) an improvisation of a dramatic work, musical work or literary work, whether or not the improvised work is based on a pre-existing work;

Nothing in this definition suggests that a reference is to the first performance by a performer. I see no reason to read this definition as anything other than EACH performance of a performer.

Now, the next great question is – how do you fixate a performance that happened in the past?

Let’s go back to the amendments to Section 23(1). This time, I quote:

Subject to this Act, copyright in a performer’s performance subsists until the end of 50 years after the end of the calendar year in which the performance occurs. However,

(a) if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs; …

If the words “before the copyright expires” refer to the copyright in the performer’s performance, then the only way to read s. 23(1)(a) is as follows: “If the performance is fixed in a sound recording not later than 50 years after the end of the calendar year in which the performance occurs…”

So we have a performer perform an artistic work, a dramatic work, or a musical work, recite or read a literary work, or improvise a dramatic work, a musical work or a literary work, which performance is not fixed at the time when it occurs, but then somehow miraculously it becomes fixed in a sound recording some time in the future.

This makes absolutely no sense if each performance is protected separately from all previous and future performances by the same performer. However, as I mentioned before, nothing seems to suggest that only the first performance receives protection, while all others remain unprotected. Unlike sound recordings that may be reproduced, live performances are never identical.

Section 23(1)(b) makes things even worse by further modifying the term of protection of performances:

“if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the earlier of the end of 50 years after the end of the calendar year in which the first publication of the sound recording occurs and the end of 99 years after the end of the calendar year in which the performance occurs.”

So we have a performer perform a performance, which is fixed at some point, but the sound recording is not published until some time later – so far so good – so the term of protection is then linked to the year of the publication, not the year of the fixation. This is understandable. However, what follows makes no sense. Again, under which scenario would the publication of the sound recording occur before the expiration of the copyright in the performance, but the 50th anniversary of such publication would occur more than 99 years after the performance?

Let’s use an extreme example.

We have a sound recording of a performance that took place in 1963, which recording remained unpublished until 2012. It gets published in 2012 (i.e. within the 50 term of copyright for performances), and according to s. 23(1)(b) would be protected for 50 years following the publication. Thus, the protection would be extended up to the end of 2062, which also happens to be 99 years after the performance. There may be an extra year missing in my calculations because the calculations should actually take into account the remainder of the triggering year, but I cannot imagine that the purpose of the reference to 99 years was to cut off one year from the term of protection. And we just used the most extreme example when the publication happens just before the expiration of the initial term of protection for the performance.

One of the rules of legal interpretation is that our laws do not contain unnecessary language. But here are my two questions to the drafters of this masterpiece:

1. In which circumstances would a performance be fixed in a sound recording after the copyright expires?

2. In which circumstances would the 50th anniversary of the first publication of a sound recording fixating a performance that took place no more than 50 years before such publication occur more than 99 years after the performance took place?

BOTTOM LINE: Yes another piece of incomprehensible language that only muddies the water. If the goal was to extend protection for performances embodied in sound recordings published after the first fixation, that goal could have been accomplished in a much clearer way.