More flawed drafting…

Before the amendments to the Copyright Act, s. 19 only had a simple subsection (1), which stated that performers and makers of sound recordings had a right to be paid equitable remuneration for performance of in public or communication to the public by telecommunication of sound recordings, except for any retransmission. This provision was the same for anyone covered by the Act.

Now, s. 19 will create three separate regimes for performers and makers with a connection to Canada (s. 19(1)), performers and makers with a connection to a Rome Convention country (s. 19(1.1)) and performers and makers with a connection to a WPPT country (s. 19(1.2)).

This hardly makes any sense, especially if we look at potential consequences.

I wrote in my previous post on s. 19(1) of the Copyright Act that it sets out that performers and makers will have the right to equitable remuneration for communication of sound recordings by telecommunication but not for the making available right. Section 19(1.2) sets the same limitation for performers and makers of sound recordings with a connection to a WPPT country. That’s logical.

Now, here comes the inexplicable.

Section 19(1.1) sets out that performers and makers with a connection to Rome Convention countries will have the right to equitable remuneration for communication of sound recordings to the public by telecommunication, period. Under s. 2.4(1.1) of the Copyright Act, the term “communication to the public by telecommunication” also includes what is generally referred to as the “making available right”.

The Rome Convention does not set out a closed list of rights that states must grant to their nationals and thus to nationals of other Convention member-states. Rome Convention sets out a bare minimum of rights to be recognized and, more importantly, an obligation for member-states to set out the national regime of protection.

Just because the Rome Convention did not provide for the making available right, does not mean that nationals of Rome Convention countries should not be able to enjoy the right that Canada vests in Canadian performers and makers of sound recordings.

Just because Canada limits the right to equitable remuneration for communication to the public by telecommunication by removing the making available part out of it with respect to Canadians and those with a connection to WPPT countries, and just because the Rome Convention does not contain the making available right, does not mean that s. 19(1.1) will also have such limitation with respect to sound recordings with a connection to a Rome Convention country.

As I wrote in my post about new sections 17.1 and 17.2 of the Copyright Act, Canada will be violating its obligations under the Rome Convention.

Section 19 does the opposite by granting more rights with respect to sound recordings having a connection to Rome Convention countries, at the expense of Canadians and WPPT countries, because performers and makers of sound recordings with a Rome Convention connection will be entitled to equitable remuneration for communication of the sound recordings to the public by telecommunication, which, under s. 2.4(1.1) also includes the making available right.

Given that most WPPT members are also Rome Convention members, we will end up with a strange result: the right that was introduced by WPPT will not be available to performers and makers through WPPT, but it will be available to them through Rome Convention, which doesn’t guarantee such a right.

Well, at least they got the digital lock provisions right, right?