Neighbouring Rights and Collective Management

AuthorCameron Hutchison
 
Neighbouring Rights and
A separate scheme of copyrights is in place under the Copyright Act
for subject matter other than works of authorship: performers’ per-
formances, sound recordings, and broadcasts. ese rights, which are
discussed in Section B, will be referred to as “neighbouring rights,” as
they are in the United States. ese rights do not arise through an act
of authorship or by satisfying the originality standard or even by nec-
essarily being expressive. Instead, they subsist by meeting def‌initional
criteria. Many of these rights are the same as the rights given to works
of authorship. e regime of neighbouring rights is rather complicated,
and summaries of these provisions remain dense paraphrases of the
various provisions. In this chapter an eort is made to describe the
law in accessible language and to highlight the practical signif‌icance of
main provisions.
Section C discusses the legal regime of collective management
that administers copyright and neighbouring rights on behalf of their
owners. Collective management is aimed at lowering transaction costs,
such as search, negotiation, and enforcement, for copyright holders as
well as users. For example, just think of how dicult it might be for a
radio station to f‌ind rightholders and negotiate with them the licences
for the musical works, sound recordings, and performers’ performances
that are connected with their broadcasts. It would similarly be dicult
  
for copyright holders to collect the royalties due to them on a per-trans-
action basis. e idea behind collective management is that a single
entity representing a catalogue of certain kinds of copyrighted material
sets and collects fees on behalf of the copyright owners.
e two topics of this chapter neighbouring rights and collective
management are tied together since many of the former are adminis-
tered by entities or regimes of the latter. In particular, collective manage-
ment societies serve as the primary means by which neighbouring rights
are realized in a practical sense. For this reason, the two topics are pre-
sented together. However, collective management can apply to authored
work copyrights, as well. In fact, some of the biggest and most powerful
collective management societies, such as SOCAN (Society of Composers,
Authors and Music Publishers of Canada), administer such rights.
1) Performers’ Performances
From the outset, it is important to distinguish between two dier-
ent kinds of performance in copyright law: performance as a right, and
performers’ performances as subject matter. e f‌irst kind is the right to
perform in public and the right to communicate to the public by tele-
communication; it is part of the bundle of rights given to an authored
work or neighbouring right. e second kind, performers’ performanc-
es, is the subject of protection as a neighbouring right which, akin to a
work of authorship, is accorded its own bundle of rights. Here, we are
discussing the second kind, performers’ performances as subject matter.
A performer, for example, a backup musician or a mime artist, has
a copyright in her performance of certain works under section  of the
Copyright Act. A performance is def‌ined under the Act broadly to mean
“any acoustic or visual representation of a work, performer’s performance,
sound recording or communication signal . . . .” A performer’s performance
is def‌ined as a performance of an artistic, dramatic, or musical work
whether or not that work is previously f‌ixed, or recorded, or its copyright
term has expired. e def‌inition also specif‌ically includes a “recitation
or reading of a literary work” and an “improvisation of a dramatic work,
musical or literary work whether or not the improvised work is based
on a pre-existing work.” e basic eect of these def‌initions is that the

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