In May 2015, Re:Sound, one of �䲹�Բ��岹’s various music licensing companies, published , a report about “the value of music to customers and businesses,” and the results are prominent: music does influence customers’ decisions. According to that report, 75% of��Canadians notice the music being played in bars and restaurants and 88% of Canadians enjoy hearing music in such establishments. Moreover, 80% of Canadians “feel that music in a bar [or] restaurant […] enhances their experience.” This appreciation often translates into very cogent actions such as making patrons stay longer, returning to the business in the future, and��recommending the place to others. Music, whether live or recorded, can be used as a powerful “marketing tool that adds value to businesses” and should therefore be carefully chosen.

This desire to hear music in eating and drinking establishments should emphasize, not trivialize, the source of that music. In fact, according to that report, “” Upon learning��that a business was not complying to music licensing laws,��almost 50% of Canadians would take some kind of action, including not recommending the establishment to others. And such reactions are not only true of Canadians. The report adds that��40% of��Swedish consumers would also have a negative opinion of a business if they discovered��it was using music illegally. Therefore, in order to take advantage of music as a means��to attract new clients, business owners must not only take in consideration what they play, but also its��legality. In Canada, that��means complying to the various rules surrounding performance rights.

�䲹�Բ��岹’s gives copyright owners the exclusive right to perform music works in public or to communicate them to the public by telecommunication. Such rights do not only include live performances but also the use of recorded music in a public setting. SOCAN (the Society of Composers, Authors and Music Publishers of Canada) and Re:Sound both provide business owners with multiple tariff licences applicable to various uses of music. Paying one copyright collective however licensees from paying the other.

�����䴡��'���� is a licence to play (publicly perform) live music in an eating/drinking establishment. The annual fee for this specific licence is 3% of the yearly compensation for entertainment, for a minimum of $83.65 per year. Compensation for entertainment includes the artist’s remuneration as well as any tips given by customers or in-kind contributions from the business owner (free meals, transportation, etc.).

, on the other hand, allows those establishments to play recorded music accompanying live entertainment. Licensees are required to pay 2% of the annual compensation for entertainment, for a minimum of $62.74 per year. Re:Sound's equivalent to this licence, , demands 0.9% of the aforementioned compensation, for a minimum of $37.64 per year.

is probably the SOCAN licence that applies to the highest number of businesses, as it covers the use of music for background purposes. The annual fee depends on the size of the establishment: $1.23 per square metre or 11.46 cents per square foot;��and a��minimum yearly fee of��$94.51. Seasonal establishments are only required to pay half of the aforementioned rate, provided they are operating under��six months per year, though��the minimum annual fee applies nonetheless. Keep in mind that paying for a streaming service or online radio will not exempt business owners from paying this licence (digital music services such as Spotify have reiterated this in their and do not allow, in most cases,��commercial use of their platform). However, no royalties will be collected for the use of a radio receiving set.

On the other hand, , the comparable Re:Sound tariff in this case, requires fees that can be calculated in : "1) the total annual tickets sold or admissions multiplied by $0.000831; or if that is not available, 2) the total capacity of the establishment, multiplied by the number of days of operation in a year, multiplied by $0.001558; or, if that too is not available, then 3) the area of the establishment in square metres or square feet, multiplied by the number of days of operation in a year, multiplied by the number of days in operation in a year, multiplied by $0.002597 (per m2) or $0.000239 (per ft2)."

Finally, �����䴡��'���� allows licensees to play recorded music for dancing. The annual fee is based on the establishment’s capacity as well as the days and months of operation. After a series of calculations based on those variables, the final number should be equal to the percentage required by SOCAN for this particular licence. , Re:Sound's comparable licence, also uses these variables to determine the required annual fee. The calculations will vary depending on whether the establishment can accommodate more than 100 patrons or not.

The Pan American Games will probably not have much of an impact on Toronto's already music scene, nor the way musicians are compensated for their work. But as they give restaurant and bar owners the chance to target a new consumer base, they also allow public performance rights to be discussed as an investment as opposed to a mandatory compensation. And as with most investments, rules need to be followed and content creators and performers��need to be remunerated.

��Aicha Tohry is an IPilogue Editor and a JD candidate at Université de Montréal.

The post Why Now is the Perfect Time to Discuss Performance Rights appeared first on IPOsgoode.

T2, an up-and-coming DJ in the nightclub industry, came back to the recording in 2007 and altered it to be released as a single in the emerging “Bassline” genre.�� Bassline is so named because of the bass prominent rhythm pattern featured in a song.�� The altering process included adding a beat track which fit within the Bassline genre and editing Henderson’s vocals in a way which made them better suited to the genre.�� The single was released in 2007 and came to the attention of record company All Around the World in the summer of 2007.�� From there, the single quickly became the most popular song in the Bassline genre and enjoyed significant success.

The lawsuit itself arose due to the ongoing relationships between Henderson, Tawonezvi, Tawonezvi’s managers 2NV and All Around the World primarily because Henderson had yet to be paid.�� The action was for breach of Henderson’s performer’s rights under Part II Chapter I of the for the initial release of the single which Henderson alleged not to have consented to.�� The Honourable Judge Birss that although Henderson had consented to being recorded, she had never consented for the recording to be released as a single.�� Although it was clear from the facts that Henderson never explicitly consented to the release, the judge also made a finding that Henderson had never impliedly consented to the release.�� Not finding an implied consent was, upon reading the facts, surprising in the legal context.

Without delving into the numerous disputed facts in the case, it is clear that at various times during the success of the single Henderson was involved in the creation of that success.�� She attended events promoting the single and is included in the music video.�� What the judge focused on primarily, although Henderson appeared to support the single��publicly, was Henerson’s negative interactions with the other interested parties in Heartbroken.�� The Judge found that because Henderson protested various elements of the single’s success she had never truly given an implied consent to the single’s release.

For example, when initially released, Tawonezvi only credited himself as composer, having the song appear as “T2 – Heartbroken”.�� Upon protest from Henderson, the title was renamed to include her as a featured artist of the track although Henderson felt that she deserved the majority of credit for the song’s creation.�� Later, in the filming of the video for the single, Henderson claimed that she agreed to take a less prominent role because All Around the World threatened to exclude her altogether from the video if she did not accept the lesser role.

The best rationality for the result in this case, despite all the actions of Henderson, is the quasi-legal compassionate grounds which the judge includes in the reasons for judgment.�� The judge characterizes those individuals at the record company as “” and notes that their actions suggest that they were “stringing [Henderson] along”.�� Without being present at the trial I can only guess at the extent of the testimony which caused the judge to make these character judgments, but by having made them, the judge provides grounds for having sided with Henderson. ��The fact that Henderson was young at the time all these events transpired, naturally gives compassionate grounds to offer her more than the usual protections of the law.

From a legal stand-point, I think that generally when an artist endorses a single they have implied a consent to the single being released.�� The fact that the artist may have been unhappy about some element of the deal is probably insufficient to invalidate that consent.�� Having said that, given the specific facts in this case, I think that the judge came to the correct decision.�� Since the finding in the case was so fact-specific and based at least somewhat on the age of the artist, I doubt whether this result could be relied upon in a general way by subsequent courts.

Adam Stevenson is a JD Candidate of Western University, faculty of law

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