The film/entertainment industry is just one of many industries being largely impacted by the spread of the virus. At a macro level, the industry has seen closures of movie theatres, live shows, festivals, and concerts. For example, Vancouver, also known as “Hollywood North”, brought in $3.2 billion dollars to the economy last year through movie productions, however recent estimates show that or cancel production completely.

The Canadian Entertainment Unions , as performers don’t qualify for employment insurance. As precarious workers, performers are viewed as independent contractors, making them particularly vulnerable during times of economic instability.

In response to this, many industries have been forced to find remote solutions, as work-from-home options provide safe alternatives. In the performance industry this presents a challenge. However, the Vancouver Symphony Orchestra has provided an avenue for adaptation. On Sunday, March 15, , live-streaming the performance for 26,000 people around the world.

This model follows the approach taken in the sports world, as the preceding Tuesday saw multiple competitions played in empty stadiums as the Union of European Football Associations took unprecedented precautions to ensure the safety of players and fans.

As fans of these various entertainment industries are increasingly being told to stay indoors, streaming platforms will need to respond to the increased demand accordingly. Smaller streaming platforms, such as Acorn TV and Sundance Now, have responded to COVID-19 by , hoping to entice new subscribers to remain loyal to their platforms.

Larger platforms like Netflix and Disney Plus will likely have to find other creative solutions to remain competitive during times of “social distancing”. In response to COVID-19, US telecom firm Verizon found that , with online gaming increasing by 75% during peak hours.

Organizations like the World Health Organization and Global Citizen have highlighted the importance of keeping us connected to the arts during isolation through initiatives like . Through enlisting the services of artists such as Coldplay, John Legend, Keith Urban, fans have been treated virtual concerts to promote unity and raise funds for the COVID-19 Solidarity Response Fund.

As the world responds to this pandemic, the entertainment industry reminds us that social distancing does not preclude interconnectedness. Initiatives like #TogetherAtHome demonstrate the entertainment industry’s ability to promote creative alternatives in unprecedented times.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at the Osgoode Innovation Clinic.

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The event featured a panel of renowned Canadian Aboriginal musicians, as well as Canadian director , brother of the Tragically Hip’s . Experimental vocalist, Inuk throat singer, and JUNO award and Polaris Prize winner was the event’s keynote speaker. Alongside Taqaq and Downie, the panel featured Inuk singer/songwriter and multiple JUNO award winner , as well as , one-third of the JUNO award winning electronic group , whose unique sound blends modern hip-hop, traditional pow wow drums and vocals, and electronic dance music. The panel was moderated by , a musician, conductor, and officer of the Order of Canada and the Order of Ontario.

The event began with a performance by Manitoban singer-songwriter , whose alternative RnB draws influence from her Cree/Dene and Irish roots. ��������é’s performance was lively, powerful, and an invigorating start to the morning’s agenda. The performance was proceeded by an introduction by Graham Henderson, the president of Music Canada. Significantly, Henderson’s introduction included an Aboriginal Land Acknowledgement; a practice that is becoming increasingly common at public events in Canada. This is an important development because Aboriginal Land Acknowledgements show recognition of and respect for Aboriginal people and their traditional territories. While it is common practice at music events and concerts to thank sponsors, volunteers, and organizers, Aboriginal Land Acknowledgements are only now gaining traction. Henderson’s inclusion of an Aboriginal Land Acknowledgement in his speech was a positive step forward and one I hope to see taken by other event organizers in the future. Henderson’s introduction was followed by a brief speech by , MP for Parkdale-High Park and Parliamentary Secretary for Multiculturalism. Virani’s speech highlighted the essential role diversity plays in Canada’s cultural output and indicated the importance of multiculturalism and the arts in Canada.

Taqaq began her keynote speech with one of her recent writings, a poem entitled “Sternum”, which juxtaposed the sternum’s biological function with the haunting image of a young girl immobilized by a man lying on top of her, his weight pressing down onto her through his sternum – as creaking bed springs resonate through the air. “Sternum” clearly alluded to the physical, mental, and sexual abuse experienced by Canada’s Aboriginal children under the residential school system, and the poem set the stage for an inspiring panel discussion that was as hopeful as it was critical. Taqaq’s keynote speech also addressed Inuit life and culture, the ongoing vilification of Aboriginal cultural practices in Canada, and the fight for justice for Canada’s . Taqaq’s speech was fiery and confrontational while simultaneously captivating and deeply moving; ultimately laying the foundation for the panel’s conversation on music, healing, reconciliation, identity, and artistic freedom.

One of the most interesting conversations, initiated by moderator Bell, was about the role Indigenous artists play as representatives of Canada’s Aboriginal people. Both Aglukark and Bear Witness commented that they felt conflicted about this role because Canada’s Aboriginal peoples are incredibly diverse and therefore it is problematic to view individual artists as representative of the whole of Canada’s Aboriginal peoples. Taqaq echoed Aglukark and Bear Witness’ comments, saying she feels the public expects her to speak for all Indigenous Canadians, simply because she is an Indigenous woman visible in the spotlight. Taqaq explained that this kind of external pressure can be burdensome because some artists just want the opportunity to speak for themselves; to express their truth, their reality, and their ideas on their own terms. Canada’s Indigenous artists are entitled to their artistic freedom: to create and express themselves as they see fit, regardless of whether their work is keeping with expectations of what it means to be Aboriginal. This was a powerful reminder to all in attendance not to reduce Aboriginal peoples or their arts and cultures to a singular vision – for as Downie was quick to note during the panel discussion, there are over 600 distinct Aboriginal groups in Canada and approximately 65 different dialects spread across 11 languages families. Thus, there is no singular Indigenous voice but rather a vast multiplicity of voices that struggle daily to be heard.

If I could distill the panel’s discussion down to one takeaway, it would be this: it is time to start listening to Aboriginal peoples’ voices – to their stories, their experiences, and their arts. It is time to accept, acknowledge, and trust Aboriginal people when they speak about the harm done to their families and communities and it is time to reject pejorative visions of Indigenous arts and artists based in restrictive traditionalism. Music has the power to heal, unite, educate, and empower, but only if we listen truly and deeply. And thus, as Downie noted during the panel discussion, the responsibility lies with all Canadians, and not simply the government, to listen and strive towards reconciliation.

The author would like to thank Canadian Music Week and Music Canada for organizing this important and thought-provoking panel discussion as well as Tanya Taqaq, Susan Aglukark, Bear Witness, Mike Downie, and John Kim Bell for their words and art.

Stephen Cooley is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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So what is the solution – crack down on artists caught infringing copyright, reform the system, or something in between? Berkeley Law professor , cited by Raymer as a "leading proponent" of reform, advocates for the introduction of compulsory sample licences, which would work similar to the compulsory licences already in place in the US for recording a cover version of another artist’s song. Under the , anyone wishing to record and distribute a cover version must simply send a notice of intention to the original copyright holder, make monthly royalty payments, and submit an annual accounting statement. Importantly, compulsory licences are currently only available for musical compositions and not sound recordings. This means that if an artist wants to use a sample from a sound recording of a drum break or an a cappella vocal hook they need to obtain the rights-holder’s permission.

Compulsory sample licensing could potentially solve tensions between copyright and the derivative works market. Artists would still have to pay royalties for any sampled material (artists presently negotiate sample clearances with rights-holders by way of one time fees, royalties or both). But the process for clearing samples would be less expensive and time-consuming and there would be no risk of rights-holders rejecting use. Menell posits that compulsory licensing for sound recording sampling would lead to a more inclusive music industry in which derivative works composers could more ably and legitimately participate. In his words: "so much of the creativity is getting put out into these gray channels, these areas that are not fully embraced by the market, and compulsory sample licenses(sic)��could be a remedy for this situation."

But not everyone is convinced. For one, the US Department of Commerce Internet Policy Task Force, in a recent , concluded that compulsory licences for remix use are not currently justified. According to the task force, compulsory licensing would break from precedent by giving rights-holders no control over how their original work is used. For this reason, the compulsory licence proposal has little support amongst stakeholders. There are also logistical challenges with respect to remix tracking, revenue distribution, and the creation of a universal music database that limit the practicality of the proposition. Thus the task force maintains that the current system of licensing and fair use successfully accommodates the interests of both creators and rights-holders.

What about Canadian musicians and copyright holders? Is there a need or desire for compulsory sample licensing here or is it even a possibility?��As it currently stands in Canada, like the US, if an artist wants to legally sample another’s original sound recording they need to .��This can be an expensive, time consuming, and confusing process for musicians, even��if��they retain a lawyer.��But the consequences for illegally sampling copyrighted material can be severe. The Society of Composers, Authors and Music Publishers of Canada (SOCAN) prudently warns that . Given the above, it is plausible that Menell's argument for sample licensing reform could be made here too.

The Canadian copyright system is not the same as that in the US though. For example, in Canada we do not have compulsory licences for cover versions of musical works. Rather, cover artists obtain (or other similar rights organizations). These licences are similar to US compulsory licences, in that rights-holders give their approval to the CMRRA beforehand and users pay a flat usage fee, but they are not identical. This is simply to say that the Canadian and US copyright systems are not mirror images of one another and, therefore, what one does is not necessarily indicative of what the other will or should do.

Thus the questions remains: what is there to be done? The previously mentioned US task force recommends two strategies, with respect to remixes, in their white paper; (1) provide greater clarity on what constitutes fair use and (2) improve voluntary licensing options for users of copyrighted material. Whether these strategies will help solve the issues that exist in the industry remains to be seen, as does the influence such strategies may have on our Canadian licensing system.

Stephen Cooley is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.��

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It Takes Two

As my discussed, the American test for copyright infringement is not markedly different from our Canadian one. A plaintiff must prove: (1) they own the copyright they seek to enforce; and, (2) infringement—that the defendant copied protected elements of the plaintiff's work. Usually in such musical infringement cases which lack direct evidence of verbatim copying (see at 481), proof of infringement involves evidence that:

• the defendant had access to the plaintiff’s work; and
• the impugned work copied a “substantial part” of the plaintiff’s work.

Together, these two lawsuits are a case study in differentiating the appearance of strong and weak music infringement claims.

Amazing v Photograph

Forget the ad hominem , trying their success with another Gaye hit against another popular artist. The thorough infringement complaint against Sheeran’s appears to establish a prima facie case, detailing considerable evidence of substantial similarity (see ). Also, its claim of access does not rest on sheer public availability, but emphasizes the wide dissemination of in the United Kingdom. Accordingly, it may be harder to establish an independent creation defense for UK residents Sheeran and co-writer Johnny McDaid.

However, the complaint is already facing criticism for being overcomplicated, in the form of from two of the eleven named-defendants, along with :

"Defying the most fundamental pleading requirement of providing short, concise and plain statements, the First Amended Complaint consists of 44 sprawling pages of prolix, repetitive, argumentative and scandalous allegations, made mostly on 'information and belief […] [i]t makes sweeping, generalized allegations — in 156 paragraphs, some of which go on for pages and contain upwards of 25 or 30 different sentences — against eleven distinct Defendants."

Trying to dismiss the claim on grounds that the pleadings fail to meet of the Federal Rules of Civil Procedure may be prudent. The songs’ choruses may be as “strikingly similar” as the claim advocates, sharing a nearly identical (albeit common) I-V-VI-IV chord progression and 64 percent of the melody’s rhythm and pitch (see [96] & [104]). Then again, the longwinded claim includes comparisons of the similar order of their verse-bridge-chorus pop structures (see [91]) and the percentage of time the respective choruses comprise ([see 93]). These comparisons are as trite as comparing two paintings on the basis that both used a canvas. “Overcomplicated” is not a far-fetched description.

Let’s Get it On v Thinking Out Loud

In contrast, the complaint that Sheeran’s substantially infringes —claiming that it copies harmonic progressions and melodic and rhythmic elements (see ()—looks unsupported.

Nearly all music contains harmony, melody, and rhythm; As important a question in infringement as whether copying occurred—which the plaintiffs claim—is, if so, what was copied and how much. On a cursory listen, it indeed sounds like Sheeran’s song has utilized a similar set of chord changes, but that is all. Without more evidence, the substantial similarity claim seems too scant for a prima facie case. As emphasized in my prior infringement pieces, chord progressions alone are as non-protectable in music as colour palettes in painting. There should either be either an overwhelming quantity of unique chordal progression copying or there must be combination of further elements like melody and rhythm to comprise substantial similarity (see at 848). Otherwise, we risk creating an absurd environment where entire genres of music cease on inception, countering a to .

Meanwhile, the evidence supporting access ([38]) is problematic for the pop music realm, since access to forty-year-old classics is as pervasive as the practice of borrowing from them. An inference drawn by combining a classic song’s prevalence with low-threshold substantial similarity would create a standard under which most pop music would be infringing. This is not to say that modern hits are free to infringe old classics. But if infringement claimants cannot prove direct copying, the similarity between the two songs should be substantial enough to leave inspiration-driven homages safe.

Is That Enough?

Though jury trials can make music infringement results unpredictable, popular speculation on the “Blurred Lines” decision suggests the jurors were swayed by visual evidence of sheet music (proving similarity) and the defendants Thicke and Pharrell’s own admission they used “Got to Give it Up” as inspiration (proving access). So despite criticism that, even with proof of copying, the finding of similarity in that case was faulty and could lead to a , a jury may respond favourably to the strong visual evidence in the “A���������Բ�” claim. Lacking in such , the “Let’s Get it On” claim appears less persuasive. Time will tell whether Sheeran walks or settles away from either.

(Merely semi-related but interesting: a third against Sheeran and Bruno Mars by “democratic presidential nominee” Christin Griskie was in 2015.)

Jordan Fine is Senior Editor of the IPilogue and Intellectual Property Journal and a JD candidate at Osgoode Hall Law School. Jordan��is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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Let’s begin with the chapter, which appears in the new Irwin Law book , edited by by the wonderful Courtney Doagoo, Mistrale Goudreau, Madelaine Saginur and Teresa Scassa, and available online under Creative Commons license. Although, of course, we recommend reading the full article (a portion of which was recently featured on as the Thursday Thinkpiece), a summary of key ideas should be helpful here. Broadly, we take issue with the way that music is treated in copyright infringement actions, adopting the view that music’s features and compositional processes are sufficiently different from most other categories of copyrighted works so as to warrant somewhat different treatment in evaluating claims of infringement. We argue that musical culture depends on the borrowing and reworking of previous musical ideas in referential ways, such that a strict application of copyright’s substantial similarity test may well chill musical creativity, undermining copyright’s objective of encouraging the creation and dissemination of such works. We argue that the “reasonable listener” test, which uses a musical layperson’s ears as the determiner of substantial copying, is an odd way of going about determining whether a substantial portion of a musical work has been copied. Following , we point out that this little-known sibling of tort law’s “reasonable person” presents more problems for adjudication of copyright infringement than he or she solves. We argue, with the use of a , that the ear alone can be misled, and, by a showcase composition replete with instances of potential but imperceptible infringement, we challenge the assumption that effective infringement analysis best relies on the aural experience of music. On the whole, we (gently) accuse most courts of being insufficiently aware of the ways musical works differ from cookbooks and computer programs, and of approaching the analysis of infringement in music in both legally and musically unsatisfactory ways.

Amongst our proposed solutions, we recommend a greater use of musicological experts to assist the court in moving beyond the average person’s musical perception and understanding. Musicologists applying the principles of music theory―the study of the structure of music―can provide useful insights into the world of music, helping courts to separate common musical devices and standard compositional techniques from more original patterns that may merit protection.�� We demonstrate how a music theoretical approach can thus assist the court in rendering a more musically just decision. In particular, such an approach can help courts to resist the mistaken assumption that every similarity recognizable to the layperson is probative of unlawful copying.

So let us now look more closely at the Court’s judgment in Robinson. After affirming (as expected) that the “perspective of a lay person in the intended audience for the works at issue is a useful one” (para 51) in determining whether a substantial part of a plaintiff’s work has been copied, the Supreme Court then nuances this view by that adding that, “[i]n some cases, it may be necessary to go beyond the perspective of a lay person in the intended audience for the work, and to call upon an expert” (ibid.). To illustrate such a scenario, the court chose this specific example:

[52] To take an example, two pieces of classical music may, to the untrained ear, sound different, perhaps because they are played on different instruments, or at different tempos. An expert musician, however, might see similarities suggesting a substantial part has been copied ― the same key signature, the same arrangement of the notes in recurring passages, or a recurrent and unusual harmonic chord. It will be for the judge to determine whether the similarities establish copying of a substantial part, to be sure. But in making that determination, the judge may need to consider not only how the work sounds to the lay person in the intended audience, but also structural similarities that only an expert can detect.

We were thrilled to see the Court endorse a strong music-theoretical approach to deciphering the language of music. The Court supposes here that analyzing harmonies advances a clearer picture of musical composition, and that most people are unable to satisfactorily pursue such analyses. While the Court’s example, like our own, speaks to the possibility of substantial similarities going unheeded by the layperson, it is at least equally true that a layperson may perceive similarities that a court, with the assistance of a musical expert, should dismiss as insubstantial or irrelevant. In short, the Court recognizes the limits of untrained ears as reasonable arbiters of substantial copying, and hints toward endorsing many of our article’s central claims about why music is special and how music theory offers useful tools to assist in the adjudication of music infringement cases. Moreover, the Court’s acknowledgement of a role for expertise in the determination of substantial similarity may reduce the risk of potential overreaching by copyright owners calling for a “holistic assessment” of similarities between works in the wake of Robinson.

It is interesting to consider how this particular example may have come about, given the rather technical musical language it features. No doubt the well-reasoned intervenor submission of Music Canada (prepared by Osgoode adjunct professors , and )��played an important role. But it is also noteworthy that, unlike many other courts, the Supreme Court boasts uncommonly significant musical expertise on its bench. For example, prior to studying law, Justice Thomas Cromwell graduated from Queen’s University with a bachelor’s degree in music, and for many years thereafter took brief moments away from his legal career to organize summer church music seminars and organ performance competitions.^[1] is also an experienced musician, having received a diploma in classical piano performance from the Royal Conservatory of Music in her youth. Can we assume that paragraph 52 is the voice of musical experience speaking?

However it came about, we were pleased to see the Court address the specific challenges of determining substantial copying in relation to musical works. Copyright law may still be in need of some music lessons, but it looks like the Justices of Canada’s Supreme Court have already taken a few; insofar as this important statement by the Court in Robinson is concerned, we think they struck the right note.

Dr. Carys Craig is an Associate Professor at Osgoode Hall Law School. Guillaume Laroche received his LLM from Osgoode Hall Law School in October 2012.

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