Arts On (the) Line: Copyright Protection of Digital Performances for Presenters, Agents & Managers

Eoin:                Good afternoon, or good morning, everyone and thank you very much for attending our webinar today. Someone's texting me, apologies. Just to start off my name is Eoin O Cathain. I am a board member of NAPAMA and the Chair of the Canadian Executive for NAPAMA. This is an Arts on the Line and we are delighted that this panel has been organized today. So this is from ... and NAPAMA and we are very delighted that Gowling WLG has agreed, and also the second time they've done something, last time was in May I believe, Susan? For force majeure. I'd just like to give a quick introduction and then we can begin. Susan Abramovitch is one of the worlds leading entertainment lawyers and a Toronto based Gowling WLG partner. As head of the entertainment and sports law group her practice covers transactions and disputes in the music, film, television, theatre, fine arts, multi-media, video games, sports, e-sports and book publishing industries. Alexis Vaughan is an associated in the intellectual property group in Gowling Toronto office. Her diverse practice focuses on intellectual property litigation, life sciences and all aspects of entertainment and sports law. So over to you, Susan, and thank you very much again.

Susan:             Hi everyone. It's really a pleasure to be with you guys again and I'm particularly pleased that our first webinar was about force majeure which is more about everything going wrong and what you can do about it or not do about it. But today we're being more productive in talking about how you move on with this new world that we're faced with, in the terms of the performance arts world. So sorry to leave this legal disclaimer on the screen longer than I had to. This is what my firm makes me say but what you should take from it is that while we are Canadian based lawyers, I've been doing entertainment law for 25 years, and I can tell you that most of the concepts will be applicable and helpful to those of you who are outside Canada as well. Please continue to stay tuned. Just the way this webinar is going to work is we're going to give you a quick overview before we get to your questions that you've submitted because I think it's important for us to set the stage, so to speak, in terms of what rights are at play and then who you need to get rights from, or what kind of rights you need to pursue for various protections. I know the audience is diverse in the sense of different kinds of performances that you put on or that you sell or that you're involved with. So we'll try to address all of them but it is important to get the nomenclature and the stakes set before we start answering your questions. So we'll spend about 5 or 10 minutes just doing that. Then we'll turn to your questions that have been previously submitted. While they have been previously submitted, I see already some of you submitted a Q&A, there is a Q&A function on the Zoom webinar. We encourage you to ask questions. I think that we have a lot of content to get through in this hour but don't be discouraged. Submit your questions. If we can answer them during the hour we will. If not, we will try to find a way to answer them in some other fashion. Whether it's with follow up emails or follow up thank you. We'll figure out. Or maybe even a second webinar.

                        So, what are the rights in play that we are going to have to deal with in terms of protecting your rights or acquiring rights to put on productions, in terms of live streams or on demand streams. So the first and major one, and I'm sure this not going to be news to any of you, is copyright. Copyright is basically created by statute and it is a right that protects literary, dramatic, artistic and musical works as well as performances, sound recordings and communication signals. Copyright isn't one right. It actually should be called copyrights or something because it's really a bundle of different rights that can be parsed out to different people for different lengths of time and for different territories. These different rights include the right to perform the work in public; the right to reproduce the work, to make a copy of the work; possibly the right to synchronize a work particularly a musical work with another performance of work. Basically when you're trying to put something on, or if you hold copyright, you need to figure out which of these particular wheat sheaths you're going to need to acquire or deal with for your purposes, and they, as we'll talk about soon, differ based on whether you're doing a traditional live performance versus a live stream versus an on demand stream. Because, of course, a live stream doesn't involve making a reproduction whereas an on demand stream or archival copy of a performance involves making a copy. In copyright terms that's a different right than actually putting on a play or a musical performance. I should mention that copyright differs jurisdiction to jurisdiction, meaning country by country. So while there are similarities and there are treaties that requires that there be similarities between different countries copyright laws, sometimes there are differences to be considered. In copyright, just to clarify, copyright doesn't last forever. If you own copyright it's subject to a term. In Canada it's usually lifetime of the author plus 50 years. In other territories it's more commonly life of the author plus 70 years and when that term is over we say that the work falls into the public domain. That's a very technical term. It doesn't mean that it's on the internet and you can go take it. It means that it's fallen out of the term of copyright and when that happens that means that you can use the work without authorization from the owner.

                        The other thing to know about copyright is that even when you've figured out which of the particular copyright rights you need, you also have to think what work you need it from. We'll talk a bit more about that later, but a good example, you may need to get rights for over, you know, one thing may have overlapping copyrights. For example, when you talk about music you may be talking about a sound recording which is one copyright, but by definition which embodies a musical work which is another copyright. Very often those two copyrights are owned by two different people. So that's something to consider. We'll talk about that a bit later.

                        Let's move on to the next one. The other right in play is moral rights. Moral rights is a creature in Canada of the Copyright Act but it's different than the Copyright Act. It's a right to be associated with the work, or to decline to be associated with the work, and the right to the integrity of the work, which is defined in the Act and we might get into that later. The important thing about moral rights to remember is that just because you might assign copyright or licence copyrights to somebody, if you don't specifically waive your moral rights you retain them, you being the author. So depending on which side of the fence you sit on you may or may not want to get a waiver of moral rights.

                        Third right in play that you need to consider are personality rights. These are distinct from copyright or even moral rights and these are the rights to someone's name, likeness, image, any kind of indicia of their personality. It's important to keep this in mind because your work, first of all, may portray personalities and that's a complicated area of the law. You may or not need to clear personality rights for that. But certainly when you use somebody's personality in order to sell  a work, for example, in marketing campaigns or perhaps on merchandise items, a t-shirt. You would have to go to the individual and get those cleared.

                        Then, finally, if you're performing in a venue, unless you own that venue, you're going to need to clear rights with the venue owner or the location owner where you're putting on a performance. Next slide. Thanks, Alexis.

                        Who are the players who have rights that you may need to acquire licences from or rights from? First, of course, you need to get rights to the content. That's the underlying work and of course, depending on the work, it could be different things. It could be a place. You may have to go to the authors of the playwrights. A dance piece so you may need to go to the choreographer. If you're putting on a concert or some kind of music performance you may need to go to the songwriters, publishers and recording artists and labels. These are the types of people, or their agents or representatives or collective societies, you may have to go to acquire rights to put on the performance regardless of how you're putting on the performance. Then there's the performers. You need to look at the people who are actually doing things in order for the performance to take place. Such as the performers and the creative crew. Then, of course as I mentioned, you would have to clear the venue unless you own it yourself. Sorry, I skipped over personality rights. Of course, anybody's personality who you wish to use in marketing materials or in other fashions of merchandise, you would need to clear. Then there's other considerations. You may need to consider going to collective societies who have been entrusted with administering very specific rights exclusively. For example, the one that comes to mind, is public performance of musical works or sound recordings. That is a collectivized right and so you may not be able to acquire a buy-out of that right from the owner of the copyright in a musical work, for example, you may still have to pay SOCAN, the collective society which administers the public performance right in musical works. So that's something you always have to keep in the back of your mind as well as unions who may have created collective agreements, or professional associations who may have minimum standards that cannot be breached if you're using their membership or contracting with their membership. Thanks. Alexis, over to you.

Alexis:             Thanks, Susan. Hi everybody. I'm going to talk briefly about the different types of rights and permissions that are needed to produce a traditional live performance versus a live streaming performance versus an on demand or time delay ... I'll explain what I mean by each of those terms very briefly. So in this context a live stream is a performance that is available to an online audience in real time. The performance is broadcast immediately and a recording is not produced. So obviously a recording would not be publicly available at a later time. In that way it's kind of analogous to a traditional performance. For streaming performance in general there may also be a live audience in the theatre. Now what we refer to as a time delay or scheduled stream is similar to a live stream in that the performance will be available online only during a specific scheduled time. However, the performance is not available in real time. It's recorded and available later. Practically speaking this means the performance is filmed using one or more cameras and that recording will be made available online later. The time delay allows for the possibility of videoing editing or splicing together footage. Whether or not you have permission to edit or modify a performance, or a recording of the performance, is going to be set out in the terms of your licence. Finally, an on demand stream is a different category. What we mean is a recording of a performance that will remain available online for an extended period of time. Think of the availability of a typical video on YouTube or Vimeo, a viewer can choose when to watch, and typically can watch as many times as they want. This graphic is mean to illustrate layers of rights that are required to produce the different types of performances. At the core, in blue, you have the rights that are acquired for a traditional live performance. The next inner circle represents the rights that are required for a live stream performance which are in addition to the core rights that are required for a traditional live performance. Finally, the last layer is on demand, or the time delayed scheduled streams. These performances require even more rights and permissions than the first two. So, as Susan mentioned, a recording is being made.

                        This slide outlines the first layer of rights. They are required to produce a traditional live performance and I imagine that most of you are very familiar with these. I'll go through them briefly. You need permission to use the contents, or exploit the copyright, as Susan mentioned. Typically the licence used for traditional live performance, including grand rights or rights to perform a play, either do not include the right to make a recording or include very limited permission to do so. So, typical terms allows small portions, from 30 seconds to 2 minutes, to be used for promotional materials. Or there might be a carve out for archival use of a recording. But generally the standard performance licence does not allow broadcast and/or public screenings of recordings. There's also a copyright in the performance. So in a traditional performance there's a separate copyright in the specific performance reviews. The creative crew, like the director, choreography, set and costume, light and sound design have used there skill and judgment to create a specific and unique version of the show that's replicated from night to night throughout the run. This is a separate copyright. In Canada the creative crew are independent contractors. They will typically be the first owners of the original work that they've created unless an alternate arrangement has been made through contract. There's also the personality rights that Susan mentioned. They come into play a lot in the context of marketing and promotional material and usually this is baked in the standard contracts with talent in order to use their names and images and venue. So permissions from the venues such as holding the performance there, rehearsals that might be required, onsite sales of merchandise, perhaps use of ticketing facilities and their staff.

                        The next layer is live stream. So you much clear and obtain all the rights that are required for traditional performance or with additional uses. Specific permission is required to broadcast, or live stream, this permission must be sought from each of the groups that we've gone through. The performers, the creative crew and the venue. As I've mentioned, the typical licence for traditional performance does not include any right to broadcast. So this is a separate permission that has to be negotiated and sought from the copyright holder or the organization that administers those rights. Note that usually, in the past, these organizations haven't been empowered to rent these licences. So they might direct you to the rights holder directly. I think we'll discuss more on this later when we go through your questions.

                        This slide, last point there, also sets out some of the considerations when negotiating permissions to live stream a performance or ways that a licence can be limited. For example, licence might limit the stream to specific video platform or host website or limit the stream availability to specific areas or countries. This is known as geo-blocking or geo-fencing. Access may be limited to ticket holders or subscribers via password protection and, in this case, payment of royalties, online ticket sales might also be required to be paid to the copyright holder.

                        Finally, the biggest layer on the outside there is for a performance that's ... or on demand and, as Susan mentioned, a reproduction of the performance must be made in order to facilitate this streaming with traditional rights.  A sync licence may also be required for the incorporation of musical works and sound recordings into an audio visual work, like the video of your performance. For certain works a single individual rights holder may own all of the rights, which might simplify the negotiation, but it's not always the case so it depends on your specific work or show. The terms of the contract might also specify how long the performance must be posted or might be posted. So it's an additional consideration for this type of performance. Will it be up for a day, a month, indefinitely, and of course other considerations that I mentioned in the previous slide may come into play here. Will the performance only be available to those who purchase a ticket? Or will it be available to the general public for free? I'll now turn the discussion over to Eoin to lead us through some of the questions we've received from the audience.

Eoin:                Thank you. So, we did open for questions so here are a few laid out. Dealing with ownership and assignment licencing of copyright. Should the artist always retain ownership of the product?

Susan:             Right. That's a very big question. One thing that you're going to hear a lot, from me today, is that basically the answer to the question is what you negotiate. Subject to the artist being able to control and alienate those rights, because there may be collective societies that already control particular aspects of the rights, and also subject to union requirements setting out minimum thresholds that may involve ownership. There may be collective agreements that say that a particular kind of artist cannot alienate ownership of copyright as a minimum standard. Subject to those two things it really is what you negotiate. Sure, everybody wants to get ownership from the artist. The artist wants to retain ownership but how much is being paid? What's the different in the leverage of the parties. Is this a big theatre producer with a burgeoning artist who's excited to get their play being made? It's really a matter of the leverage of the parties, the negotiation, what the other deal terms are. I would not say that the artist should always retain ownership because it really depends on the situation.

Eoin:                Okay. Thank you. How should we calculate composers rights in the licencing of videos of music? The duration of the posting. The minutes of the music. The number of views.

Susan:             Right. So before I even get into this I want to reiterate something that I said pretty quickly during the slides. Whenever we're dealing with music it's super-duper important to remember that there's potentially two rights. The right in the sound recording if you're using it and the rights in the musical work. You'll always have to clear the musical work because, of course, without musical work there is no music, by definition. But there may or may not be a sound recording that you're using. So let me give you an example. If you're putting on a play and you want a performer in the play, or any kind of performance, you want that performance to have an actor sing an existing musical work in the play, well you have to get the right to use the musical work. If you play a sound recording as part of that performance, of that musical work in the performance in the background, you turn on the radio in a play and something recording plays, that's two separate rights. So you have to make sure that the rights to both the sound recording and the musical work have been cleared. So let's just start with that because I think that's a cause of confusion for a lot of people. But back to your question, how do we calculate composer's rights? Again, this is all subject to negotiation. There isn't a rule of thumb that says if you use 3 minutes you pay X. If you use 10 seconds you don't have to clear it. There's no rule. Let's start with de minimis uses. In the Copyright Act it says that the copyright holder controls the substantial use. Or put another way, copyright infringement is the unauthorized use of a substantial part. If you're using a non-substantial part you don't have to clear copyright. Of course, the big question here, or I know one you want to ask me is, okay so, how many seconds is a substantial part? Well, unfortunately, you I'm going to have to give you a lawyer answer here by saying it really is defined, not just quantitatively but qualitatively, and will depend on the situation and ultimately will depend on what a judge thinks it is, if it ever goes to litigation. So that was a really lawyerly answer. I usually advise people no matter how small a portion you think you're using it's always safer to clear it. I'd rather be debating it in a negotiation than in a court of law. Whether it's substantial or not substantial. But beyond that, assuming that you're trying to clear, I mean obviously how much of a song you might be using might dictate or impact what you end up negotiating. But what if it's like the essential 3 notes of a song that makes a song immediately recognizable and it's used throughout a performance or a play or whatever? You really have to contextualize it as well and, again, there's no rule that I can give you, even with those parameters, of how much you might pay. It is what you negotiate. The other thing to remember is that even if you do a deal with a composer for the right to use their musical work in your production, regardless of whether you doing it live, live stream or on demand, you may not be able to acquire all the rights. Again, I touched on this but I want to go back to the fact that public performance rights are preassigned by a composer to SOCAN, the collective society that administers it in Canada. The equivalent of SOCAN in the US is BMI, Ascap or SEASAC and each of those collective organizations have affiliations with similar organizations all over the world. When you affiliate with one they're collecting for you all over the world. In Canada, you've preassigned the rights so if you're a composer you can't then say to somebody, "Okay, don't worry about SOCAN. I'm granting you public performance. Just pay me a flat fee." You can't do that in Canada. It's different in the US. In the US the rights given to the societies are not exclusive. Alexis, do you have anything to add to that? Just feel free to jump in if you do.

Alexis:             No. I think you've covered it.

Susan:             Okay.

Eoin:                Great. The next question is, can a producer buy out the rights of the performers or composers for a video production to be licenced? What are the pros and cons for producers, performers and composers? What about other parts of the creative team, director, lighting, sound, editor?

Eoin:                I bet Eoin you could answer that question now that I've given my answer to the last two. It's really subject to negotiation. Can you buy out? Yes. Do you want to buy it? That depends on the situation. So, one thing I always advise my clients is whether you're a licencee or you're trying to acquire the rights outright, be careful what you ask for. Obviously, the easiest thing to do is to say, "Okay. I don't know how I'm going to exploit this work ultimately. I know right now I'm just going to do a live stream."  But who knows? Maybe in 5 years I'll want to do something else with it. Maybe somebody will come to me to use a clip for their production or on a TV show. If I haven't cleared the underlying rights for that use I'll feel bad because I won't be able to licence it to them. It's the easiest to say, "I want worldwide rights to use it in any way possible so please give me that." Or, "I want to buy out the rights completely." That's great. That will give you a lot of rights, for sure. But it will also cost you a lot of money. A lot of my clients make the mistake of saying, "I want the broadest possible rights." I'm like, "That's fine if you want to pay for them." But if you have a limited budget you're going to want to carefully circumscribe your ask for rights to what you actually will need. Now that may be what you need immediately. Might be what you need in the future. There's ways of crafting contracts to deal with potential things in the future that might happen but might not without paying them up front. For example, you could structure whether it's a buy our or a licence. You could say, "Okay, well right now I'm just doing a live stream so please licence me this music for a live stream. I'm only going to do it Canada. I'm going to geo-block the rest of the world," (we'll talk about that later), "and I only need it for this one day. That's all I need right now. Please quote me on that." But we may want to offer this on demand. We may want to expand the territory. We may want it for a certain number of years. We may want it for a longer period after that. All these are possibilities and you ask them to quote for options to extend the rights to those whatever the package of rights are. By doing that you say, "Okay. I'll pay what for I need now but please quote me and give me the right to opt to extend the rights in exchange for paying whatever you quoted me." That becomes part of the deal so you know today that 3 years from now, if you need to get those additional rights, you know exactly what you have to pay for. You don't have to go back to the drawing board once you're production is a huge hit and the licensor wants to basically ask for a lot more money down the line. That's a little tip. But back to buying out rights completely, again, keep in mind that certain rights won't be able to be bought out, either because of union minimum standards or because of the collective societies having control over those rights, like public performance. I've already talked about that. So that's, I think, what I'd like to say about that.

Eoin:                Great. We're flying through these. There's some more in the Q&A section but to the next question on this subject. Do licencing costs vary from region to region, and depending on exposure, limited access or open access?

Susan:             Absolutely. Again, collective societies exist in different territories and deal with setting rates and tariffs in different ways. So from a collective licencing perspective you may be dealing with different rates. Territoriality with copyright, one thing that I want to mention is that copyright is dictated by the statute of the jurisdiction. If you're licencing copyright for the territory of Germany you have to look at the German Copyright Act and how it's governed. There may be different owners in different jurisdictions. If you want to get rights from region to region you may be dealing with different parties. The owners may be different people in each country. In that way, when you negotiate you may be negotiating with different parties, region to region, which may impact the cost.

Susan:             Eoin, you're on mute.

Eoin:                Thank you. I believe that we're onto discussions on personality rights. I'm just going through Alexis' sheet.

Susan:             Sure. Maybe I'll give you a deeper dive into personality rights before we begin. So I mentioned that personality rights, and they're known sometimes as misappropriation of personality, in Canada, or appropriation of personality. In the US sometimes they're called publicity rights. So these are rights to use the name of a person, their image, their face, their voice. I've encountered cases, not personally but in the case law, where typical expressions of comedians are used and that was an indicia of personality in that case. Sound-alikes and look-alikes, so you don't have to use necessarily the person's actual face. It might be a look-alike that may trigger personality or publicity rights. So that's what we're talking about the subject matter is. The idea is if there is value to your personality rights, or your image, and when somebody uses it without consent in certain context there's a right that needs to be cleared. Or put another way, if they don't clear it you may have a cause of action against them. The problem with personality rights is that first of all, it's governed in North America State by State and Province by Province. So if you want to put on a, forget about North America and just even a national, US or Canadian production, and you're using somebody's personality rights you have to consider the law of 50 states and 3 Territories and 10 Provinces. Which is overwhelming. The law differs from State to State and Province to Province and I can tell you from my Province, Ontario, Canada, the law is pretty much unclear. It's not in a statute. It's created by the common law which put another way is by case law. I would say a rule of thumb, but again keeping in mind that it's not clear what the law is, is that at least in Ontario if you're using a personality, or indicia of somebody's personality as the subject of a work, you probably don't have to clear it. So if you're doing a play about Susan Abramovitch, please go ahead everybody. Alexis, I see you laughing there. But if you're using somebody's personality to sell something, like on a poster for a play about Susan Abramovitch, that might be different. Or on merchandise or in an ad campaign or in a commercial. Those are obvious ones. That's kind of where I line things up when clients ask me. As a contract lawyer, not a litigator, it's better to get the rights up front and not have any uncertainty about it. But there are definite differences. Some States and Provinces have statutes that dictate how personality rights are to be parsed. So it's kind of a tricky area. Now, again, I talked about making sure that you're only going after the rights that you need. You don't necessarily have to get somebody's personality rights. Again, if you want to do something with somebody as the subject of the work, maybe that's okay. But if you want to use a performer, let's say you have a performer and you're contracting with the performer to perform in a play or in a dance show, you do that but are you also expecting to use their name and likeness in the promotional materials for that production? Are you expecting them to use their social media platforms to help promote. They're not indicia of their personality but it's tied to their personality and actually ask them to conduct other services. You should really think through. It's not just that I want this person to perform in my work. I may want them to do other services that involve their person. Or I may want to use other aspects of their personality in order to help put this production on. When you sort of think it through like that then you know what you need to ask for. Again, ideally, you think that through before you engage that performer so that it's in that one contract that you enter into up front.

Eoin:                So on a same discussion point, personality rights, do you have any language suggestions for using avatars of the artist along with their recordings?

Susan:             So avatars. Avatars. Very interesting development in the performance space. In fact, before everything got shutdown we were busy writing an article about a fascinating topic that I liked which was all these concerts that were being put on with holograms of dead people like Tupac Shakur and, who was the other one? Alexis, do you remember?

Alexis:             Wasn't it Michael Jackson?

Susan:             Definitely Michael Jackson was one. There's another guy. I forget. Anyway, some big 50's rocker. I was fascinated with that. Especially since it involves personality rights of dead people and, of course, that's another aspect of personality rights which is very unclear. Do they survive the death of the person, or not? Again, State by State, Province by Province may have differing views of that. And, of course, the hologram on stage went away with the shutting of theatres, it may be coming back now but more importantly we just saw the success of concerts within video games, with the Fortnite, Travis Scott concert that everybody watched. That used an avatar which was a portrayal of the artist. Now, for many reasons, I don't think anybody could attempt to do that without getting rights from the artist. The music artist in this case. You need to rights to his music which might have been owned, probably is owned, by some other entity but still would probably require his consent. Then he's actually performing within the video game so of course you're doing a contract to them. But interestingly the use of an avatar involves a couple of rights. So first of all, clearly I think in this case, you probably would have to get the personality rights granted from the person who's portrayed by the avatar. They'll likely have a large say over how they're portrayed. In fact, as I understand it, technology in order to make this avatar work well you would want to maybe motion capture the actual artist in how they move so that the avatar actually looks like them when they're performing on stage. That's one. Also, the avatar itself that's created, would have copyright in it. You also are going to have to be careful, and when I say you, there's a lot of players here. Is it the artist who wants to be careful to own the copyright to that avatar that was created by somebody else? Is it the artist or the computer scientist who created the avatar? Is it the person putting on the production? There's a big question there but there is definitely copyright there that needs to be acquired, that is owned by somebody, may need to be acquired by somebody else whether by assignment or by licence. Very interesting area and I think we're going to write an article about it. So stay tuned for that and I have a feeling that we're going to see a lot more developments, legally and otherwise, in this area.

Eoin:                Great, Susan. I'm looking at chat as well and just a quick question which someone asked. The copyright law Susan is referring to is a Canadian law, yes? Just so you can clarify a point you made at start.

Susan:             Yes. I'm not sure exactly which reference you are talking about. In Canada copyright is governed by the Canadian Copyright Act. In the US there's a US Copyright Act. In other jurisdictions there are other legislation that governs copyright. Actually, this is a good segue into a point that I want to make about territoriality. I kind of brushed over it before. Copyright is a right that's governed country by country. Or jurisdiction by jurisdiction. If I create a song, or any other work that's governed by copyright, the determination of whether it's governed by copyright, whether I have copyright in it, and what that means to have copyright in it. What rights do I have? How long do I have them? What constitutes infringement? All of those things is dictated by each countries copyright law. Which could legislation. It typically is. In some places it might not be governed by legislation. It might be governed by case law. So if I create a work I have a Canadian copyright. I have a US copyright in it. l have a German copyright. I have a UK copyright. Right? I have a copyright in each place and just because I'm Canadian and I'm based in Canada doesn't mean that the Canadian Copyright Act is the end of the analysis. If somebody wants to use my musical work in the United States, that's governed by the US Copyright Act. Okay? Somebody asked a question, it's beyond the scope of this webinar to talk about fair use or fair dealing, but in the US there's a concept of fair use which is a defense copyright infringement, or put another way which I don't like to say, is a user right. But basically, if it falls under category of fair use they're not infringing copyright. You're allowed to use somebody else's copyright. In Canada there's a similar but different, not completely overlapping concept, called fair dealing. If somebody is doing a documentary in the US and wants to use my music, and depending on the context, wants to argue that they're excused from getting permission to use my musical work in their documentary in the US, they wouldn't look at the Canadian Copyright Act fair dealing provisions to determine that. They'd look at the US fair use provisions. And the reverse is true too. If a US based artist creates a musical work and I'm a documentary filmmaker, and I want to try and fit it into my work without getting authorization, I have to look at fair dealing under the Canadian Copyright Act for the exploitation of my film in Canada. In the US you look at the Us Copyright Act for exploitation in the US. In order to answer questions you look at where you're using the work. Right? Where is the work being, as we say, exploited. Some people get offended by that word but that's what we say. Where is the work being exploited? It's that country's legislation, copyright legislation, that will govern the answer to the question. Why I spent a lot of time explaining this is because a lot of people, lawyers included, trip up. Sometimes they look at a contract that involves copyright so it could be a licence and it's between Susan Abramovitch, for the licence of the musical work that I created, to be used in a performance of some sort and I grant whatever rights are granted and the licence at the end of it says this contract will be governed by the laws of Ontario and disputes will be submitted to the Courts of Ontario. When you choose law to govern a contract, like a licence, laws of Canada and of Ontario, that doesn't mean that the US Copyright Act is irrelevant now. All you're choosing is the law that you use to interpret the contract, that governs the contract, and it may also go on to say if we have a dispute here's the jurisdiction where we have to resolve our dispute. In resolving that dispute in the Courts of Ontario, and interpreting the contract under the laws of Ontario and Canada, it doesn't change the fact that in the US or in a grant of rights I may want to say that it's a work for hire. A work for hire provision is a US concept. When I grant ownership of my copyright to somebody, even if it's a contract subject to Ontario law, that work for hire language will dictate what I've granted under US copyright law. So those are two separate things that should not be collapsed onto each other.

Eoin:                Susan, is the EU considered a single territory? Sorry, the European Union considered a single territory?

Susan:             This is beyond my competence a little bit. Again, it's how the EU organizes its copyright law. As I understand it each country has its own copyright law that has to be of course melded together because of copyright directives at the EU level. But that's like directives that dictate what the individual countries laws should be. So there could be differences still.

Eoin:                Okay. Thank you. Next question. Can you explain territorial release? If a venue is streaming on the website how can one contract for this?

Susan:             Okay. So now that I've talked a lot about territoriality and the difference between copyright law, territoriality, and the law of the contract, and I hope that was clear. If it wasn't please ask questions and I'll answer again some other fashion. But when you throw something on the internet unless you geo-block it's available throughout the world. If it's available throughout the world, as I just said, it's where a work is being exploited. If somethings being made available all over the world it's being exploited all over the world. Whether or not a user in a particular territory actually accesses it. The rights have to be cleared worldwide. Going back to another thing I said, where you're trying to acquire rights and you want to circumscribe what you're acquiring, obviously if you say, "Well, I want worldwide because who knows? Maybe somebody in some territory will be interested in seeing it.", that's great. But you're going to pay a lot more for it for a licence worldwide then for a North America licence or a Canada only licence or a German only licence. You need to clear rights for every territory that's available. If you don't want to do that or if you're not capable of getting the rights, because they're not available to you for a particular territory, then you need to technically geo-block users from that territory from accessing. The other thing I mentioned but I want to reiterate because it's really important is that owners or agencies that may control rights typically will be, or may be, different territory to territory. So somebody who is a publisher of a musical composition in Canada may not be the publisher for the US or for Europe. A lot of my artist clients have deals with music publishers or record labels all over the world so they have different labels depending on where you're doing it. So if you're seeking worldwide rights, not only it may be expensive, it may also be extremely cumbersome to get worldwide rights because you may be dealing with a whole lot of licensors. Recently it looks like theatrical licencing agencies have come on board, some, to help people get access rights that they need to get. Maybe Alexis you can talk a bit about that.

Alexis:             Sure. So the larger organizations that ... these types of rights, now on their websites some of them offer a simple type of sign up, where if you have an existing licence with them you can add streaming rights. A lot of the time they're classified under those same classifications I went through earlier in the presentation. The live stream, scheduled stream or on demand video. Some of them have specific limitations baked in. For example, some of these licences are only issued when the stream is available on that organizations website. So they'd be responsible in that case for the geo-blocking, for ticket sales and bank for royalty collection and distribution. But it completely depends on the specific work that you're looking at and who administers that work and also, of course, the territory and jurisdiction that you want to screen your work.

Eoin:                Just to throw in, by the way, that we will be providing a link to this webinar and to the slides in case you missed anything. Onto the next subject. Difference between Canada and US law. Are there significant differences between US and Canada regarding the use of music? I beg your pardon. I missed one question. I'm going back to territories and jurisdiction. What determines which country's law applied to film?

Susan:             Right. I'm not sure I have an answer to that or at least maybe I've already answered it. Again, there isn't one law that applies to film. It depends on where you're exploiting the work. I don't know what you mean by film. Are you trying to licence a clip? Are you creating film? Are you acquiring rights to a film. But wherever you want to exploit that film that's the country's laws that you need to look at. And when I say laws I mean copyright law for the purposes of the answer to that question.

Eoin:                Thanks, Susan. So onto again the next subject which is differences between Canada and US law. Are there significant differences between US and Canada regarding use of music in film?

Susan:             Yeah. There is. The big one in Canada, this is actually a political hot button, is that the definition in the Copyright Act of sound recording excludes sound recordings that are accompanying cinematographic works. In other words, if the sound recording is synchronized with a film, then it  no longer is a sound recording for the purposes of the Act. You might say, "Okay. That sounds lawyerly and legalistic." But it has a very practical implication which is that if it's not a sound recording then the public performance of that sound recording doesn't trigger what's called neighbouring rights royalties. So there are royalties paid when there's a public performance or a communication by telecommunication which is basically an electronic performance through the internet or by way of broadcast. There's rights of renumeration for that in a sound recording. If sound recordings played on the radio then there's royalties paid. They're called neighbouring rights royalties. They're called neighbouring rights royalties, I believe, because they're the rights that neighbour the equivalent rights for paying performance royalties when a musical work is performed publicly or communicated by telecommunication. Remember? I distinguished between sound recordings and musical works. Cowboy Junkies does a cover of 'Sweet Jane'. Cowboy Junkies owns, or their record label owns the recording, and Lou Reed, or his music publisher owns 'Sweet Jane'. Two different rights. Okay? In this case sound recording, if it's in a film or television show, when that television show or film is broadcast let's say on TV, because it's no longer considered a sound recording there are no neighbouring rights royalties paid, even though the musical work embodied in that sound recording would trigger public performance royalties when a television show or film is broadcast on TV. That's an important distinction but that is not the case in the US. In the US the situation is different, in any event, because there is no concept of neighbouring rights other than digitally for royalties paid and collected by an organization called Sound Exchange for the public performance of sound recordings over the internet. Those are some distinctions about music and film.

I think we're at the end of the questions. So that's exciting. We have a little bit of time left to go through some of the Q&A.

Eoin:                Yeah. I've actually kind of taken a few questions. Just to say that I think we've discussed that questions that we can't get to or maybe they need some research I believe, Susan, they'll be answered at some point and left answers somewhere.

Susan:             We will try to get back. I've seen some of the questions. Some of the questions are looking for template agreements. We're happy to provide those if you'd like to engage us. Some of them are a little bit outside of our field and big questions. I saw the first question asked was about tax implications. That's beyond the scope of our expertise here. But we'll try to answer as many as we can now and afterwards.

Eoin:                Well I picked out a few that maybe you could. In relation to territorial, on live stream it would be worldwide. How do we word the contract so we are covered worldwide. Is that a possible thing to do?

Susan:             Yes. Absolutely. You can do anything in your contract. You just say that the grant of rights, the territory of the contract, you set out the rights that you need and you say the territory of the contract is worldwide. But again, caution. Number one, if the licensor represents and warrants that they do have worldwide rights to grant and they have all the rights that they're granting in the contract, that's great but you need to make sure that the licensor does control the rights worldwide. When I say you need to make sure, if they say they do it's very hard to actually go and do your own due diligence to figure that out. But very often is the case, as I mentioned, that different entities own rights in different territories so you may not be able to get that. Number two, you should also consider the limits of the rights being granted because, again, while you're getting worldwide rights for what you want to do, first of all hopefully it's not violating any union requirements, but are there any collectively administered rights that you need to consider as well. Biggest example being the collective administration of musical works when they're publicly performed or communicated by telecommunication over the internet.

Eoin:                Okay. Another question that I've picked out. Sorry, I'm picking questions which are less narrative base, which are very direct and so apologies if I'm missing your scenarios but I think it's just for time wise. What does fair use allow you to do with the proportion of work that is subject to copyright?

Susan:             Right. So, we touched on that. I don't want to get into too much detail because this is a complicated area. I could bounce it to Alexis who probably knows a lot more about it then I do. The main thing I would say about this and then, Alexis, feel free to fill in the detail if you want. First of all, as I mentioned there's fair use and there's fair dealing. Fair use is the concept under the US Copyright Act. Fair dealing under the Canadian Copyright Act. What those concepts do are, I would say it's a little bit political, excuse infringement. They're defenses to potential claims of infringement. The young 'uns today like to call it user rights. In other words rights of the user. It's a right, just like copyright, it's a corresponding right. You have copyright. That allows you to stop people from doing certain things. I have a user right which allows me to proactively do things. Again, the distinction between that nomenclature is a bit political so I'll leave that aside for now. Basically it allows people to do certain things with works without getting clearance. So for example, one of the big headings under fair dealing is news and reporting. So when something has copyright in it, it is used for news purposes, that may fall under the rubric of fair dealing. There's other headings as well. I'll let Alexis name them and then once you fall under a category, sorry Alexis put you on the spot, once you fall into a category your not at the end of the analysis, then you have to also go through an analysis that's been created by case law about whether your use is actually. Fair. So you can't say, "News reporting. I can show an entire 2 hour concert of this artist.", because that may not qualify as fair as defined by the courts. Alexis, anything to add?

Alexis:             Definitely not going to list the categories on the spot. I think, you've made all the major points, but I think one thing to recognize something you said earlier during the presentation that a fair use/fair dealing analysis is complicated and you can make arguments either way. It's easier to kind of resolve this at the outset to clear your rights and figure out it at the beginning then to take your chances and litigate. That obviously depends on who you are and your means as an organization but from a risk reduction type perspective I'd say that's the way to go.

Susan:             That is an excellent, excellent point. That being said, situations come up. I had one with a documentary that was being made on a very, very controversial subject, and there were certain things that could not be cleared by definition because you knew they'd never be cleared, but without them you couldn't expose whatever was being exposed in this documentary. In situations like that sometimes you do have to do the analysis because there is no answer of clearing for any price.

Eoin:                Just a general question I had. Is there a lot of case law and legislation because of things like YouTube and social media or is it still a very kind of growing area that it's kind of developing or we're figuring out as we go along?

Susan:             We're definitely figuring it out as we go along. We did get an interesting copyright exception, as I call it, in the last round of Canadian copyright reform. We call it the YouTube exception. It's not specific to YouTube but it's for user generated content. When you use copyrighted material in your user generated content for non-commercial purposes. That is not considered an infringement of copyright. As far as I know that has not yet been analyzed under case law. Alexis, do you know of any?

Alexis:             No. I don't think so.

Susan:             Yeah, we're very interested in what that means because at this point in the world what does commercial/non-commercial use mean? If I'm an influencer is that commercial? I would say yes. It is all being figured out. A lot of people don't understand. When I say people I mean people in these fields still haven't really parsed all the rights and the remedies. Right now when you have the YouTubes of the world and Facebooks have created protocols for content to be up there and for it to be monetized, and you can opt into monetizing your content, or putting in a take down and you can always ask them to take it down.

Eoin:                Thank you. I'm just going to ask one more question, and to people who have submitted questions, I apologize if I haven't gotten to them. We did actually just have pre-submitted questions and we had some extra time. But just this last one. If you acquire written permission (ie: synch rights) is that the licence?

Susan:             Yes. That's exactly what it is. But, again, synch rights and I'm not sure if I explained that sufficiently. A synchronization licence, or synchronization rights, are the rights to synchronize a musical composition, or a sound recording, with moving images. My favourite synch of all time, just personally if you want to know something about me, is the use of that middle part of 'Leila' in, oh my God, what's the name of the film? It's like a mafia film. Oh, it's so good. 'Goodfellas'. 'Goodfellas'. That is my favourite synch of all time. So in order to do that the producers of 'Goodfellas' would have to go to the person who owns the musical composition and get a synch licence, and to the owner of the master, which would be the label that owns 'Leila', and get what's called, it's still synchronization use but it's typically called a master use licence. You need two licences to get that. But, yeah, the document in which the right to synchronize the musical work or the master with your moving image is the synch licence. Again, when you're doing it with a master we call it a master use licence.

Eoin:                On that note I would very much like to thank Susan, Alexis, Shannon and Rachael who are back there working their magic in helping this webinar happen. Also Sue and Andrew and ... and Chris and Ron in NAPAMA. So, everyone thank you very much. As we mentioned there's a link in the Q&A that Shannon put up where, I think, in a few days this webinar will be available to re-watch and the slide show. Also, eventually at some point there'll be the answers to the questions that we didn't get to. Will they be on the same link, Alexis or Susan?

Susan:             No they won't. I don't think they will. Go ahead, Alexis.

Alexis:             We'll go through them and we can see what we can answer ... follow up but there's a lot of various questions in there that will require some legal analysis. We'll see what we can do but otherwise you might need to engage your lawyer for those very specific questions.

Eoin:                Thank you. And, again, both of you thank you so much. It has been an incredibly insightful webinar. We very much appreciate your time and your consideration towards the arts industry and arts professionals and we hope to see you again. Everyone, thank you very much and we'll talk to you soon.

Susan:             Our pleasure. Thank you, Eoin.