Written by music lawyer Byron Pascoe – Edwards Creative Law
What is Copyright Protection?
Copyright protection covers original musical, literary, dramatic, and artistic works of authorship. Canada’s Copyright Act defines a musical work as “any work of music or musical composition, with or without words, and includes compilations...”
Is my idea protected?
Copyright protects fixed expression of ideas. What that means is that ideas for songs are not protected until they are fixed into an expressive medium – for example – typing lyrics on a computer, or recording the song. If the idea, but not the tangible assets are copied, that’s not copyright infringement. As such, if you have ideas for a new song or an arrangement of an existing song, create a tangible record of your ideas.
What is needed to gain copyright protection?
To gain copyright protection, the work must originate with the author, it must not be a copy of another work and author must exercise skill and judgment.
Do I need to register with SOCAN to get copyright protection?
No. A work is copyrighted as soon as it comes into existence. You may register the song with the Canadian Intellectual Property Office – which among other things gives notice to the rest of the world of a claim and creates a legal presumption that you are in fact the author, maker or owner. Registration costs between $50 (online) and $65 (mail). Registering your song with SOCAN does not trigger copyright or provide the same legal presumption. You don’t actually submit the song when registering with CIPO. If you do want to ensure you have submitted the song somewhere, another option is the Songwriters Association of Canada’s Canadian Song Vault. The application fee for each form is $15, and each song to be registered in the vault is $5. The songs are registered indefinitely. However, if you or the court need access to your work, you must renew your S.A.C. membership for at least a year. More information: http://www.songwriters.ca/songvault.aspx
So what does copyright entitle you to?
Copyright is a bundle of rights which include giving the copyright holder the exclusive rights to Produce, Reproduce, Perform, Publish, Communicate, and Rent. Taking away the legal jargon - the copyright holder has the right to decide who uses the work. The right to copy provides the copyright holder the sole and exclusive right to produce or reproduce a work or a substantial part of it in any form.
The copyright holder might assign her rights to someone else such as a music publisher. The copyright holder might license his rights to a label for a specific amount of time and/or in a specific territory of the world and/or for specific types of uses.
Regarding music, what’s copyrightable?
Two sets of copyright protection exist in every sound recording — the right in the composition, and the right in the sound recording. Copyright in the music/lyrics – and copyright in the recording. For every composition there is either no recording, one, or many. If a choir is recording a public domain song, while the choir wouldn't own copyright in the composition – they would own the copyright in the recording.
How long does copyright last?
The exclusive rights that a person automatically receives once she creates a work eventually expire – and the specific time is when the copyright rights expire, and the work goes into the public domain.
While there are exceptions, copyright generally lasts for the life of the author, the remainder of the calendar year in which the author dies, and 50 years following the end of that calendar year. Once this term expires, the work is in the public domain.
Due to NAFTA’s replacement, which we call CUSMA and which our friends call USMCA, this will increase soon to 70 years, which the timeline in the United States presently. The public domain is composed of millions of creative works - all of which may be freely copied, distributed, adapted, or performed in public without permission or paying a fee. As such, if you want to adapt or arrange a song written by someone who died more than 70 years ago (as opposed to 50 years ago – to be safe) you don’t need permission – but you do if the writer hasn’t been gone for 70 years – or is still alive! This
For clarity, once a composition goes into the public domain, the writers (or their representatives) are no longer paid writing royalties, and decisions that once required writer approval no longer apply.
If you aren’t sure whether a composition has gone into the public domain, for example because you don’t know who wrote the piece, SOCAN representatives have unofficially referred to PDInfo.com to see if that site lists the composition as being in the public domain, and the name(s) of the known author(s).
Arrangement, Adaptation and Permissions
Distinguished from covering a song, examples of an arrangement are changing an original melody to a new style, or adding music before/during/after the main melody. Adapting lyrics would include writing new verses based on more modern situations and keeping a timeless chorus. For compositions that are not in the public domain, if you want to arrange music or adapt lyrics, you must seek permission from the writer(s), or where relevant, the writers’ publishers. If a composition is in the public domain and you want to arrange or adapt it, you don’t need permission. In both cases you aren’t entitled to 100% of the writer royalties for the new work.
SOCAN outlines 7 scenarios relating to how public domain works are registered with SOCAN if there’s an arrangement and/or adaptation of a public domain (PD) composition.
Arrangement of PD music (instrumental):
Public domain composer – 75% - not payable
Arranger – 25% - payable
New Music and unchanged PD words:
Public domain author – 50% - not payable
Composer – 50% - payable
Adaptation of PD Words and Unchanged PD Music:
Public Domain Composer/Author – 75% - Not payable
Adaptor – 25% - Payable
Arrangement of PD Music and Unchanged PD Words:
Public Domain Composer/Author – 75% - Not payable
Adaptor – 25% - Payable
New Words and Unchanged PD Music:
Public Domain Composer – 50% - Not payable
Author – 50% - Payable
Arrangement of PD Music and New Words:
Public Domain Composer – 25% - Not payable
Arranger / Author – 75% - Payable
Adaptation of PD Words and New Music:
Public Domain Author – 25% - Not payable
Composer / Adopter – 75% - Payable
When you log into SOCAN, click My Catalogue, then click Register My Works, then click on Work Type and choose Arrangement/Adaption of Public Domain. It will let you choose between all the seven options listed above. If you choose “Arrangement of PD Music and New Words”, then Public Domain will be automatically listed as 25%, and you can fill in the rest of the 75% with the people who arranged the public domain music and wrote the new lyrics. When a composition is categorized as Public Domain and the author is unknown, list “Unknown” as the author. If you should ever find out the author, you can replace it.
Updated to December 5, 2020
Edwards Creative Law is a boutique law firm provides legal services to Music, Film and TV, and Interactive Digital Media industry clients. For more info and blogs, please visit www.edwardslaw.ca
Regarding music law, Byron Pascoe (firstname.lastname@example.org) works with composers, performers, producers, managers, and music companies to assist with record label agreements, publishing contracts, distribution deals, producer agreements, etc.
This article is for general informational purposes only and is not to be considered as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.
© 2020 Edwards Professional Corporation
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