More horrible drafting here…
Buckle up as I will guide you through a maze of exceptions from exclusions.
As I wrote in my comments on section 19(1) of the Copyright Act, despite the general definition of communication to the public by telecommunication, which includes the making available right, performers and makers of published sound recordings will only have the right to equitable remuneration for communication of such published sound recordings by telecommunication, but not for the making available right.
That provision is modified in the new subsections 19(1.1) and 19(1.2) of the Copyright Act, which (if interpreted to read what they say) set forth that only performers and makers of sound recordings having connection with the Rome Convention countries will be able to enjoy the equitable right to remuneration for communication of the sound recordings to the public, including the making available right. This appears to be the exception from the rule that will exist for performers and makers having connection to Canada and the WPPT countries.
It gets better from here.
The new Copyright Act will have sections 19.1 and 19.2, which set out that for the purpose of application of Sections 19(1) and 19(1.2), if a work is made available to the public over the Internet, then, for the purposes of the equitable remuneration provisions of s. 19, such making available will be deemed to be publication of the sound recordings. (Remember, s. 19 only vests the equitable right in respect of published sound recordings?)
Now, it is easy to see that the new Sections 19.1 and 19.2 do not address sound recordings having a connection with Rome Convention countries.
So we end up with absolute insanity:
Performers and makers of sound recordings having a connection with Canada and WPPT countries will NOT have the right to equitable remuneration for the making available right, even though the making available of the sound recordings will be deemed to render such recordings “published” for the purposes of the equitable remuneration provisions.
On the other hand, performers and makers of sound recordings having a connection with Rome Convention countries WILL have the right to equitable remuneration for the making available right, even though the making available of such sound recordings will NOT be deemed to render such recordings “published”, and so sound recordings the copies of which that have not been made available to the public other than through communication to the public by telecommunication, will be disqualified.
It’s great to have a “modernized” Copyright Act! If you found my explanations too convoluted, I don’t blame you. The provisions hardly make any sense.
So, let’s recap:
For Canada and WPPT countries:
– making of the sound recordings available through the Internet qualifies them for equitable remuneration;
– the equitable remuneration does not cover cases when the sound recordings are made available through the Internet.
For the Rome Convention countries:
– making of the sound recordings available through the Internet does not render them “published” for the purpose of equitable remuneration;
– the equitable remuneration covers cases when the otherwise published sound recordings are made available through the Internet.
If there is a method to this madness, I surely am incapable of comprehending it.
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