Rights of Sound Recording Makers
18. (1) Subject to subsection (2), the maker of a sound recording has a copyright in the sound recording,
consisting of the sole right to do the following in relation to the sound recording or any substantial part thereof:
Full Text: Copyright Act
(a) to publish it for the first time,
(b) to reproduce it in any material form, and
(c) to rent it out,
and to authorize any such acts.
What this essentially means is that a person or persons who originate the recording of an event, be it music, speech or whatever are the only person(s) with authority to reproduce the recording and the only agency which can authorize others to do likewise.
In the journey ahead on this topic, we will examine what these terms mean and the implication for purchasers of a recorded work.
What we will see is that anyone buying a copy of a recorded work and making unauthorized copies of that recorded work is in direct violation of the laws of the government of Canada and where applicable, the laws of the US and other countries as well.
A commonly heard statement in AA circles is "there is no copyright of AA speakers".
While this sounds impressive, it is neither correct nor the point of the issue.
At issue are the rights belonging to the person who created the recording, not those of the speaker.
Persons performing the function of recording a speaker's talk (known somewhat anachronistically as "tapers")do so not as members of Alcoholics Anonymous, but as private individuals or as 'for profit' companies who do so with the sole intention of managing their rights as copyright holder.
This does not mean that some individuals don't try to ride the fence, wanting to honor the traditions and principles as expressed in the practices of the fellowship of AA, however this does not override the law!
The law stipulates who may or may not make copies. AA has no authority in the matter, nor should it try to have any. AA goes to great lengths to protect it's own copyrights (those pertaining to the name Alcoholics Anonymous, the circled triangle symbol and other relevant property.
There is a saying in legal circles that ignorance of the law is no excuse.
Indeed, a person embarking on a course of action which may yield profit has an obligation to equip himself with all the facts about his endeavor.
Put simply, while the speaker delivered his message for the good of AA, and likely for his own good, the recorder is there on his own behalf, seeking to create a saleable product.
While this may sound rather crass, these are the facts.
A recording company expends it's own resources (not those of AA) to prepare for, travel to the location, and accomplish the work, and having invested his resources, then expects to realize a return on his investment.
Simple business economics.
Said recorder may even negotiate considerations from the hosting group or committee of an event to offset expenses, but this does not transfer copyright to the committee, it's members, or AA as a whole.
The recorder may of course enter into a contract to perform work on behalf of the above entities, which work results in the recorder assigning his copyright to them, but this is not implied by an invitation to record and duplicate for a roundup
Even more obvious is the fact that a person purchasing an authorized copy of a recorded work has NO Authority to create copies from that purchased copy
The oft declared mistruth that "everybody does it" is not only blatantly false but a snare for the newcomer and the wilfully ignorant long timer.
For many years, Upper Room Communications has placed a small but visible warning on all our products stating either "unauthorized copying prohibited" or "unauthorized copying violates copyright laws"
Most reasonable people respect this, but a few persist in the erroneous belief that it doesn't apply to them.
They are wrong.
For some time now we have been aware of several companies or web sites offering for sale copies of recorded works for which Upper Room Communications is the sole copyright owner.
Upper Room Communications is the Only agency with authority to create additional copies from the master recordings we posses. Anyone making copies from a copy and selling or giving them away as gifts is breaking the law, and anyone receiving those illegal copies is guilty under the law of possession of stolen property!
While we have looked the other way for a long time, we will no longer do so.
Our legal representatives have been instructed to launch in depth investigations into the operations of several web site sales outlets, one of which is located here in Alberta, and another in British Columbia
Our lawyers have instructions to use the results of their investigations to file necessary documents with the RCMP and the law court systems in the various jurisdictions.
It is our intention to cause all unauthorized duplication of our intellectual property to cease forthwith.
We also intend to cause such operations to render any and all profits already received from such sales to be surrendered to Upper Room Communications.
One such company has now been served with a cease and desist order and may suffer a lawsuit for damages and penalties under section 35 of the Canada Copyright protection act that could amount to $100,000 or more and if charges are layed under the Criminal provision of the Copyright act (Section 42 shown below) could result in imprisonment for up to FIVE years.
This is an unfortunate but necessary action.
I cannot think of any business which would tolerate the theft of their products. Companies distributing Television signals by satellite or cable prosecute thieves mercilessly.
Persons or companies who do the same to our products may expect no less
We will continue to allow a person purchasing a copy of our recorded works to make a "reasonable number" of copies "for their own use". This is only authority we extend to every purchaser.
What does 'reasonable number' mean? Well the law is rather vague on this point so we take the liberty of saying a maximum of three. This includes transferring them to a computer hard drive, making a CD copy of a CD, or of a tape, or vice -a- versa.
If you are giving copies away to sponsees, on a regular basis, you are teaching them to steal and lie. You would not condone them going into a store and helping themselves to products on the shelves, or gas from the service station pumps without payment
If you want to impart some integrity to your sponsees, either buy them an authorized copy or encourage them to buy it for themselves.
The bottom line is any business which intends to continue in operation must be able to realize profit from it's products or it goes broke and ceases to be.
Upper Room Communications is no different in this respect. If dishonest people and companies are permitted to bleed off sales revenue, what will occur is our services will not be affordable.
It is so ironic when members of a program which demands vigorous honesty stand in front of us at our sales table and discuss how they will buy one set of CDs and the make a copy for their friend.
They seem to not even realize what they are about.
Hence the necessity for this rather lengthy document.
The penalties the law provides|
34.1 (1) In any proceedings for infringement of copyright in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff thereto,
(a) copyright shall be presumed, unless the contrary is proved, to subsist in the work, performer's performance, sound recording or communication signal, as the case may be; and
(b) the author, performer, maker or broadcaster, as the case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright.
1997, c. 24, s. 20.
35. (1) Where a person infringes copyright, the person is liable to pay such damages to the owner of the copyright as the owner has suffered due to the infringement and, in addition to those damages, such part of the profits that the infringer has made from the infringement and that were not taken into account in calculating the damages as the court considers just.
(2) In proving profits,
(a) the plaintiff shall be required to prove only receipts or revenues derived from the infringement; and
(b) the defendant shall be required to prove every element of cost that the defendant claims.
R.S., 1985, c. C-42, s. 35; 1997, c. 24, s. 20.
38. (1) Subject to subsection (2), the owner of the copyright in a work or other subject-matter may
(a) recover possession of all infringing copies of that work or other subject-matter, and of all plates used or intended to be used for the production of infringing copies, and
(b) take proceedings for seizure of those copies or plates before judgment if, under the law of Canada or of the province in which those proceedings are taken, a person is entitled to take such proceedings,
as if those copies or plates were the property of the copyright owner.
38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.
|Possible Results of Violating The Copyright Act of Canada
Offences and punishment
42. (1) Every person who knowingly
(a) makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists,
(b) sells or rents out, or by way of trade exposes or offers for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists,
(c) distributes infringing copies of a work or other subject-matter in which copyright subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright,
(d) by way of trade exhibits in public an infringing copy of a work or other subject-matter in which copyright subsists, or
(e) imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists
is guilty of an offence and liable
(f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or
(g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Possession and performance offences and punishment
(2) Every person who knowingly
(a) makes or possesses any plate that is specifically designed or adapted for the purpose of making infringing copies of any work or other subject-matter in which copyright subsists, or
(b) for private profit causes to be performed in public, without the consent of the owner of the copyright, any work or other subject-matter in which copyright subsists
is guilty of an offence and liable
(c) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or
(d) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Power of court to deal with copies or plates
(3) The court before which any proceedings under this section are taken may, on conviction, order that all copies of the work or other subject-matter that appear to it to be infringing copies, or all plates in the possession of the offender predominantly used for making infringing copies, be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit.
(4) Proceedings by summary conviction in respect of an offence under this section may be instituted at any time within, but not later than, two years after the time when the offence was committed.
R.S., 1985, c. C-42, s. 42; R.S., 1985, c. 10 (4th Supp.), s. 10; 1997, c. 24, s. 24.
From the Official RCMP Website
Enforcement of Intellectual Property Rights in Canada
In Canada, intellectual property rights (IPR) holders may protect their rights under the following Acts of Parliament:
Industrial Design Act
Integrated Circuit Topographies Act
Plant Breeders' Rights Act
IPR infringement is almost exclusively subject to civil not criminal legal proceedings. The onus is on the rights holder to monitor the marketplace and to take legal action. The right holder must apply for an injunction to stop the infringing activity or to order payment for damages.
The Copyright Act is the only IPR legislation to include criminal sanctions for serious infringement or piracy.
Under the Copyright Act, criminal offences are punishable by fines up to $1 million or imprisonment for a term not exceeding five years.
There are no criminal provisions in the Trade-marks Act. There is a section of the Criminal Code governing 'Forgery of Trade-marks and Trade Descriptions'. The primary offence is that of 'passing-off' a good as being a trade-mark good. The punishment involves imprisonment for a term not exceeding two years. Convictions for trade-mark infringement are more difficult as it is necessary to prove that the individual was engaged in fraud or deceit of the counterfeit goods.
Counterfeiters produce unauthorized copies of popular goods that are likely to have mass appeal. Preliminary findings indicate that some manufacturers are commodity-specific, for example, they only produce pirated music CDs. While some retailers are commodity-specific, many are opportunistic and sell counterfeit goods according to popular trends and according to their network of contacts in the counterfeit industry.
Some industry anti-piracy representatives state that the counterfeit industry is used to launder criminal proceeds. There are indications that some individuals involved in the drug trade are also involved in counterfeit activity. By participating in multiple criminal enterprises, individuals can move funds from their origin towards seemingly legitimate investments. The investment of criminal proceeds into counterfeit businesses and, in turn, towards legitimate investment warrants further investigation.