[d at DCC] Copyright on movies (was Re: Fair use question)

[Russell McOrmond]

Wallace J.McLean wrote:
> If copyright subsists in the composition, of course.

   Of course, and sorry I didn't use clear language.   I guess the point 
is that the expiry of the composition and the expiry of the recording of 
music are at different times, and each can expire before the other.

   While there is currently many popular re-recordings of 1970's and 
1980's music, there are unfortunately not as many recordings of 1870's 
and 1880's music where the life+50 of the composer could have expired.



    As to the question about movies, etc, I found a reference in the 
definitions interesting and may hold the critical clue to my question. 
I read the relevant sections of my copy of "The 2001 Annotated Copyright 
Act" (by Normand Tamaro, publisher Carswell), but there doesn't appear 
to be any caselaw on this question.


 From the Act: http://laws.justice.gc.ca/en/C-42/


---cut---

“sound recording” means a recording, fixed in any material form, 
consisting of sounds, whether or not of a performance of a work, but 
excludes any soundtrack of a cinematographic work where it accompanies 
the cinematographic work;

...

Cinematographic works
	
11.1 Except for cinematographic works in which the arrangement or acting 
form or the combination of incidents represented give the work a 
dramatic character, copyright in a cinematographic work or a compilation 
of cinematographic works shall subsist

(a) for the remainder of the calendar year of the first publication of 
the cinematographic work or of the compilation, and for a period of 
fifty years following the end of that calendar year; or

(b) if the cinematographic work or compilation is not published before 
the expiration of fifty years following the end of the calendar year of 
its making, for the remainder of that calendar year and for a period of 
fifty years following the end of that calendar year.

---cut---

   Section 17. discussed the copyright of the performers performance 
included in Cinematographic works, but since this is a fixing+50 year 
term (See Section 32) this copyright would expire before the term of 
copyright for the cinematographic work.  It is the terms of copyright 
that would be longer than the term of the cinematographic work that I am 
concerned with.

   The clarification in section 2 definitions suggests that the 
performance of music in the cinematographic work is not a "sound 
recording" and thus while the composer would not retain the same rights 
for a cinematographic work as they would for if it was a "sound 
recording" as it relates to section 81 (Right of Remuneration for 
private copying) or section 19(2)(a) (Right of remuneration for 
"performance in public or its communication to the public by 
telecommunication, except for any retransmission").

   I still wonder if someone separated the music from a cinematographic 
work in the public domain and included it in another work (or published 
it separately) whether there would be any possible way for SOCAN or the 
composer to sue anyone.  Would such a case be thrown out, or would this 
be yet another expensive chill against people exercising their 
legitimate user rights?

-- 
  Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
  Please help us tell the Canadian Parliament to protect our property
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