If there is a method to this madness, I surely don’t see it.

Copyright Modernization Act adds subsections 15(1.1), 15(2.1), 15(2.2), and 15(4) to the Copyright Act. These subsections are essentially an updated version of what used to be ss. 15(1), 15(2) and 15(3) of the Copyright Act.

The problem is that the Copyright Modernization Act does not repeal these former versions, and so, it appears, the Copyright Act will simultaneously have both the old and the new version.

This makes me wonder how many people who were so passionately debating over the amendments, have actually read the bill.

I see no reason other than sloppy drafting for the new Copyright Act to have both the old s. 15(1), which defined the scope of rights of performers in respect of their performances and the new s. 15(1.1), which does the same thing in a different way.

For example, old s. 15(1) mimics Article 7 of the Rome Convention and contains three subparagraphs 15(1)(b)(i), 15(1)(b)(ii) and 15(1)(b)(iii) defining the rights of a performer with respect to reproduction of his performance that is fixed: (i) to reproduce the fixation made without the performer’s authorization; (ii) to reproduce fixation made with authorization for purposes that were outside of the initial authorization; and (iii) to reproduce the fixation that was done without authorization but excused under various exceptions allowed by the Copyright Act for purposes that were outside the scope of such exceptions. The new s. 15(1.1) simply states that performers have a right to reproduce the fixation, period. Question, will an authorization by the performer to fix the performance for the purpose of putting a video on YouTube deprive the performer of the right to reproduce the performance for the same purpose?

In other words, will limitations of the old s. 15(1) still apply, even if s. 15(1.1) offers broader protection?

Section 15(1.1)(d) uses the following wording: “A performer’s copyright in the performer’s performance consists of the sole right … to make a sound recording of it available to the public by telecommunication in a way that allows a member of the public to have access to the sound recording from a place and at a time individually chosen by that member of the public and to communicate the sound recording to the public by telecommunication in that way”. Section s. 15(1.1)(a)(i) gives the performer, whose performance is not fixed, to communicate the performance to the public by telecommunication. Furthermore, s. 2.4(1.1) of the Copyright Act clearly states that “For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.”

Now, quiz time:

1. Does the performer whose performance is not fixed have the right to communicate it to the public by telecommunication both in the old-fashioned way and in a way that amounts to the making available right?

2. Does the performer whose performance is fixed only have the making available right with respect to his performance due to the wording in s. 15(1.1)(d) or does he also have the traditional right to communicate the fixed performance to the public by telecommunication?

3. If the answer to #2 is that it’s only the disguised making available right, then what was the purpose of blending telecommunication to the public with the making available right if they are treated separately in the end?

My guess is as good as yours.

Section 15(1.1)(e) contains another masterpiece of legal drafting. It states that if the performance is fixed in a sound recording that is in the form of a tangible object, then the performer has the right to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the performer’s performance. If you haven’t already, please read my general comments about merging ownership in tangible objects and ownership of copyright in a work. How do you fix a performance in a sound recording that is not in the form of a tangible object? Would Bryan Adams, according to the new rules, own all iPhones that were used to record his performance at Rogers Arena in Vancouver on June 16, 2012?

It gets better from here.

Section 15(2) was the section that defined the national boundaries of protection for performers. Essentially it gave protection to performances if the performer or the performance had a connection to Canada or a Rome Convention country. The new Copyright Act keeps s. 15(2) intact and adds ss. 15(2.1) and 15(2.2). Section 15(2.1) gives protection to performances if the performer or the performance has a connection to Canada. Section 15(2.2) gives protection to performances if the performer or the performance has a connection to a WIPO Performances and Phonograms Treaty (WPPT). No word in the newly added sections about Rome Convention countries.

If the new sections were meant to displace the old s. 15(2), then it would mean that performances originating from performers who are citizens or permanent residents of a Rome Convention country, but not a WPPT country, will not be protected in Canada. If the new sections were meant to add to the old s. 15(2), then why would the new s. 15(2.1) duplicate the provisions of s. 15(2) in respect of connection to Canada?

Finally, the newly added s. 15(4) essentially duplicates provision of the old s. 15(3) and defines the first publication of a sound recording as it occurs in a WPPT country, whereas s. 15(3) used to define the first publication of a sound recording as it occurs in a Rome Convention country.

BOTTOM LINE: Awful, awful drafting. The intentions may have been good, but the resulting s. 15 is now more confusing than it used to be. A real shame for a massive amendment that the Copyright Modernization Act was supposed to achieve.