Neighbouring Rights and Collective Management

• Author: Cameron Hutchison
• Pages: 85-102

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Neighbouring Rights and

CollectiveManagement

A. INTRODUCTION

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

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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.

B. NEIGHBOURING 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