Copyright Law: A Symphony for Change

1 July 2021

Introduction

Prelude: en pointe

1st Movement: Allegro – Copyright Law: A Quick Overview

2nd Movement: Minuet – Music is Distinct

Music Heals

Music Defines

Music Pervades

Music Borrows & Merges

3rd Movement: Scherzo & Trio – The Justification Joke

Labour

Authorship

Public Interest

4th Movement: March –Music as Unique Experience

Coda: Conclusion

Bibliography

Legislation

Jurisprudence

Secondary Materials

 “Music is all around us, all you have to do is listen”.[1]

Introduction

As time is impervious to bottling, music is incompatible with canning.[2] Music is everywhere. It is in our social media, our entertainment, even in our showers. It heals the body, soothes the soul, and can serve as a touchstone about what it means to be human. Music is transient and flexible only living in the moment. It is how we communicate, grow, and reflect as sentient beings. Inspired by sound and rhythm, we reflect, respond, and relate. Music once delivered is received and reshaped into new life. We sing along, tap our toes, or interject with our own interpretive riff. It is as if music is simply an extension of us. As William Butler Yeats asks, “O body swayed to music, O brightening glance, How can we know the dancer from the dance?”[3]

Separating creators from users, copyright law seeks to propertize music into something that is separate from human experience. Music is unique in both form and function. Given its sui generis nature, ubiquitous integration, and historical interaction, it will be argued that the current Canadian approach to rights over music is incompatible with an ownership regime. 

Organized as a symphony for change, this work opens with a short prelude (en pointe) setting out the policy point of copyright. The first movement, a quick and jaunty Allegro, then explores the unique nature of music punctuated by themes situated within the human experience. The second movement, conceptualized as a dance-like Minuet, goes on to reflect on the incompatibility between music and its protection. The third movement, marked as a Scherzo[4] & Trio, exposes the joke of justification for music protection. The final fourth movement, a majestic March, exposes the disconnect between the experience of music and the test that is used for infringement. This is intended as an unfinished work wrapping up with a short coda calling for music to be freed from the constraints of copyright protection. A final marking, an ellipsis, invites the reader to interject and continue this conversation.

Prelude: en pointe

“Just as nature abhors a vacuum, so the law abhors a monopoly. Copyright is an exception to the law’s abhorrence of monopolies”.[5] Copyright law is a creature of statute.[6] The basic structure of this monopolistic regime is founded by “the sole right to produce or reproduce the work, … to perform the work … in public or, if the work is unpublished, to publish the work”.[7]

Copy rights are born in the creation of “every original literary, dramatic, musical and artistic work”.[8] In an effort to incentivize creation, the author of a work automatically assumes rights over their creation upon the expression of a sufficiently original work. However, the theme running through copyright law in Canada is “the importance copyright plays in promoting the public interest, and … that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain”. [9] This goal requires that “both protection and access … be sensitively balanced”.[10]

The policy objective of copyright law is to achieve a legislative balance between the protection of creator rights and user rights. However, music is distinct amongst the arts. Its impact on individuals and society is unparalleled and it is experienced uniquely. It is expressed differently, received differently, and used differently. As will hopefully be revealed throughout this work, music is unlike any other art, and does not belong within the copyright sphere leaving the copyright balancing act to the other intellectual arts.

1st Movement: Allegro – Copyright Law: A Quick Overview

In the area of music, copyright is primarily delineated between compositions, performances, and recordings. Musical compositions were the first to be included in copyright law. This was because sheet music was included within the definition of “book”.[11] This was a time when it was all the rage to purchase printed copies of popular music for home enjoyment.[12]

Copyright over recordings began with the rise of recording technology starting in 1877 with the introduction of the phonograph.[13] Copyright entered into United Kingdom law in 1911 as the sole right to make any contrivance of a musical work.[14] In Canada, the 1921 Copyright Act,[15] based on the 1911 UK Act, was designed to implement Articles 11,[16] 13,[17] and 14[18] of the 1886 Berne Convention for the Protection of Literary and Artistic Works, as revised in the 1908 Berlin Revision.[19] Prior to 1993 copyright in Canada defined a musical work as “any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced.”[20] However, after CTV Television Network Ltd. v. Canada (Copyright Board)[21] found that the communication of an “acoustic representation” or performance was covered by the term “musical work” and was subsequently revised to mean “the original musical composition itself, as fixed in any manner whatsoever” with the lyrics integrated within the form.[22] This broad and flexible definition no longer required pitch or rhythm leaving the possibilities for “musical work” wide open. “Music” really is everywhere. 

The current law provides copyright for an original musical work.[23] It defines a “musical work” as “any work of music or musical composition, with or without words, and includes any compilation thereof”.[24] The phrase, “every original … musical … work includes “every original production whatever may be the mode or form of its expression”.[25] Notably “work” is not defined. The Copyright Act does however, provide protection for various music-specific activities including sound recordings,[26] performer’s performances,[27] and communication signals.[28]

Given the piecemeal approach to copyright, written publications are treated separately from sounds. This to a large degree introduces complication into the area of publication. While there is little controversy over the copyright ownership of certain elements in a publication like the title page, the layout, the forward, and any methodological suggestions,[29] copyright ownership over the music in the score is less clear. Where a score is reconstructed, David Vaver suggests that the editor should be “rewarded for their skill and judgment by a copyright in the new version”.[30]Guillaume Laroche however, reminds us that “the test for copyright is not whether one has done research, corrected mistakes or even added new editing marks; it is, simply stated, whether there is some more than trivial or de minimis original expression in a work”.[31] Differentiating between copied elements and those requiring sufficient skill and judgment is not easy as they can involve deletions and the blending of various sources. 

Oddly enough, copyright subscribes to the adage of “more is better” as Laroche notes that copyright only rewards the “addition” of “skill and judgment”. Editions that remove markings or blend markings from various sources that may actually provide added value are left in the lurch[32] while those that add unnecessary or radical markings are bestowed exclusive copyright over the entire score.[33] Indeed, the court in Sawkins v. Hyperion Records Ltd.[34] awarded copyright in a printed score based on “re-composition” made by an editor that could substantially change the sound of the music. Rewarding changes in this way neglects to account for the public interest in having access to more authentic music. Additionally, Laroche notes, the ominous copyright notices in such publications do not align with copyright law and imposes a risk of isolating the music from its user.[35]

In addition to the exclusive copyright protection that is bestowed on the author of a musical work, rights are also available to those who are sufficiently connected with a work. Related rights are designed to “protect the legal interests of certain persons and legal entities who either contribute to making works available to the public or produce subject matter which, will not qualify as ‘works’ under the copyright systems of all countries, but express creativity or technical and organizational skill sufficient to justify recognition of a copyright-like property right”.[36] These “neighbouring rights” typically involve performers, record producers, and broadcasters. These rights were developed from the “International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations”.[37] Originality is not required for performer’s performances, sound recordings, or communication signals. This means that almost any type of motor function would be captured by performer’s performance, all recordings of any type of sound are protected, and fixation is not required for performances or broadcasts.[38]

Performers can prevent fixation onto a sound recording, broadcasts and communication to the public of live performances, and some fixations of their performances.[39] This also includes moral rights to prevent unauthorized use of their name or image.[40] Record producers have authority over reproduction, importation and distribution, and copying, and have the right to receive compensation for broadcasting and communication to the public of the recordings. Broadcasters can authorize rebroadcasting, fixation, and reproduction of broadcasts. 

A copyright holder enjoys the exclusive right to perform the musical work in public. Performance refers to “any acoustic or visual representation of a work, performer’s performance, sound recording or communication signal, including a representation made by means of any mechanical receiving instrument, radio set or television receiving set.”[41] The term “performance” is to be interpreted broadly and can include “a digital transmission of a musical work or a digital representation of dramatic action in a dramatic work, whether through computers or otherwise, is capable of invoking the right of performance in public”.[42] Even the transmission of non-broadcast services of musical works to subscribers was found to be a performance in public within the meaning of s 3(1) of the Act.

While location for performance is determined according to where the “rendering of the work takes place”,[43]performance rights are only for performances done “in public”. “In public” has been interpreted to mean, “openly, without concealment and to the knowledge of all”[44] as well as “in a place, situation, location, or state open to public view or access; openly, publicly; opposed to in private”.[45] In examining the character of the audience,[46] the tests asks “whether or not the act complained of as an infringement would, if done by the copyright owner himself, have been an exercise by him of the statutory right conferred by the Act” and “whether the audience in relation to the owner of the copyright may properly be described as the owner’s public or part of his public”. [47] If the performance is conducted for commercial gain, it may also be considered to be performed “in public”.[48]

The act of communicating a work to the public through telecommunication is a form of communication right that is included in performance rights.[49] Telecommunication refers to  “any transmission of signs, signals, writings, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system”.[50] While “communication” can involve transmission,[51] the downloading of a digital copy is not a “communication”.[52]

For infringement to be found, the communication must be “to the public”. This means that it “must be aimed or targeted toward people in general or the community”.[53] The test for “to the public” has been simply the “in public” test as described as well as inviting a broader conceptualization that would include communication to the public who are situated in domestic or private settings. According to Vaver, “[i]f the content is intentionally made available to anyone who wants to access it, it is treated as communicated “to the public” even if users access the work at different times and places”.[54]

The general challenge that results from all this is that there are many sets of rules that apply and often these rules overlap and are arguably overbroad. The separation between copyright in a musical composition and copyright in a sound recording, to a large degree, is a function of the evolution of technology. Up to the early 20th century, it was common for entertainment to include home gatherings that centered around a piano playing the popular tunes from sheet music. Reading music was how music was disseminated. Music sales dominated and copyright emerged.[55]However, with the rise of sound technology, the ability of people to read written music declined. To illustrate, the release of “Song Reader” solely in written form by Beck in 2012 saw unspectacular sales with the band being accused of pretentiousness.[56] Jamie Lund notes that this anomaly “demonstrates the often-elided distinction between a musical composition and the sound recording of its performance; each is separately copyrightable”.[57] Lund suggests the test for copyright infringement should account for the differences in audience between these two types of formats[58] and recommends that the test for compositions should include “proper statistical sampling that captures reactions from a composition’s intended audience – musical performers”.[59]

Music is not a singular object over which property can lie. Hopefully this quick overview has provided a general idea about how complicated and interrelated the issue of copyright can be when it comes to music. Music is a multifaceted and multilayered experiential art that does not fit within a one-size-fits-all approach. With so many rights-holders involved, the interest of the user is overwhelmed. The next movement explores how music is distinct and discusses the implications for its protection. 

2nd MovementMinuet – Music is Distinct

Music has a profound effect on people biologically, culturally, and socially. It is unique in its ability to “penetrate the core of our physical being”,[60] enrich our cultural identity, and connect us as social beings. “Music gives a soul to the universe, wings to the mind, flight to the imagination and life to everything”.[61]  Music is unique in its ability to heal and connect, to define and motivate, and to integrate into all facets by design. This short dance-like movement discusses some significant areas of distinction that warrant the removal of music from the copyright sphere. 

Music Heals

Music has the power to inspire, to calm, and to heal. It reaches us at a deep biological level beginning even before birth.[62] It has been seen to “accelerate the learning process, boost productivity of a workforce, heighten immunological responses of cells, reduce muscle tension and improve body movement, and alter heartbeats, pulse rates, and blood pressure”.[63]

The power of music is particularly seen in the area of human health and well-being. Using music as therapy has proven effective for a variety of ailments including depression,[64] Posttraumatic Stress Disorder (PTSD),[65] and Alzheimer and dementia.[66] As humans, we are hard-wired to music. Rather than an intellectual activity, it is a pre-verbal system that is received at a basic level in the limbic system. It is connected to the basal ganglia and brain stem rather than the frontal lobe responsible for more cognitive-type functions.[67] Those who have lost their verbal skills are able to use music to communicate, those who have lost their ability to respond can experience emotions, and those who have declined into a world of isolation can connect with others.[68]

The benefits of music can be profound. Mozart, like morphine, can calm and comfort. Hopelessness, discomfort, and strife can all be attenuated through the sweet strains of music. For many, music therapy can involve listening to, singing, or playing the music they love alone and in groups. Similar to the dilemma of being denied access to the formula of a vaccine during a pandemic,[69] it can be considered unconscionable that an opportunity to experience the significant benefits of music be denied or risk violating the law. Considering the valuable healing properties of music, it is difficult to justify such an oppressively long period of exclusivity. Indeed, if one accepts that a core component of what makes us human is to care for and protect others,[70] it is difficult to justify any period of exclusive protection. 

Music Defines

As a universal practice, music knows no cultural bounds and is an integral aspect of all known social groups.[71] It provides the elixir for social connection across different cultures. Lullabies are sung to babies, communal experiences are shared, and rituals celebrated. Music is used to develop social bonds and connect with others. The commodification of culture hinders not only access to a valuable resource, it denies our very identity as autonomous, sentient, and responsive beings. 

C.B. Macpherson suggests that “[b]y understanding human society as constitutive of the individual, it is possible to see the importance of communication between members of society as crucial to the formation of the human self: ‘speech [is] the activity by which we gain a kind of explicit self-aware consciousness of things which as such is always related to an unreflective experience which precedes it and which it illuminates and hence transforms’”.[72] Without the chance to freely express ourselves and connect with others around us, we are denied the opportunity to develop and grow as human beings. 

In Canada, the right to freely express oneself is a Charter right with few limitations.[73] It applies to all expression that “relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing”.[74]Music can be used as a tool of democratic protest, it can be the source of deep spiritual enlightenment, and it can be used for creative personal flourishing. However, rather than be afforded the same consideration as the freedom of expression, copyright employs a proprietary approach. L. R. Patterson suggests that to view copyright as proprietary is to defeat its goal of public access.[75] Craig notes, “the goal of maximising cultural flows and channels of communication between members of society” that is shared between copyright laws and freedom of expression is disrupted by a proprietary approach.[76]

As a “common heritage”, music has been shared by all people regardless of their social or economic status.[77] The free nature of music is recognized at a deep and primal level. The proprietary approach is artificial and unworkable and is failing the purpose of serving the public interest. When musical expression is accepted as not only a public right but as a reciprocal right of the public to both express and be heard, the dialogic value of copyright aligns with the freedom of expression.[78] Musical expression as a communicative act warrants recognition as a relational tool by which to enrich the collective commons. This requires elevating music to a place of free expression with limited exception rather than coddled and mute. 

Music Pervades

Music is everywhere. It is in computer software, product marketing, and conceivably in anything that produces sound. It is as if music has woven its way into the fabric of everyday life to the point it is indistinguishable.[79] The ubiquitous nature of music creates earworms attached to our subconscious. As Justice Learned Hand describes “[e]verything registers somewhere in our memories, and no one can tell what may evoke it”.[80] As we will explore later on, this creates significant challenges in the area of copyright enforcement. 

In many ways, music is not thought to stand as a separate thing. Instead, it is conceptually and factually integrated with other experience. For example, “sangıta in Sanskrit, “wai khruu” in Thai, and “nkwa” for the Nigerian Igbo all refer to music and dance as one activity.[81] This integration is also seen between music and other activities such as the sharing of the term “Candomblé” for both music and religion in the Candomblé Afro-Brazilian culture.[82] In fact, some cultures, such as in Africa, don’t even have a word to describe “music”. This has prompted  some to suggest that the isolation of “musical sound” from “other arts” is ostensibly a “Western abstraction”.[83]

Sound, as a general construct, can be considered sacred. The connection between music and the cosmos, with supernatural and spiritual powers often being attributed to music. One popular theory is the Occidental theory of cosmic music where the intervals and character of the music were thought to influence nature and society.[84]  Ancient India subscribed to the notion that all sound was indeed sacred.[85] With this in mind, the ethical dilemma for copyright law is whether it is warranted to try to protect what is ubiquitous or sacred. This has urged some to call for an end to this “copyright lockdown”.[86]

As a prerequisite to the quantification necessary for copyright evaluation, music must be capable of being isolated from its activity in order to assign value. Given the pervasive and integrative nature of music, it is not always possible nor warranted to separate form from function making the propertization of music inappropriate and moot.

Music Borrows & Merges

We are all standing on the shoulders of giants.[87] Discovery can only build on to what is already existing. Jessica Litman recognizes the legal fiction of originality reminding us that authorship is never truly a novel enterprise but instead relies on the works of others. [88] This is particularly true with music. Music is made up of a defined set of ingredients. The basic building blocks are simply pitch[89] and rhythm.[90] Western music[91] is built on a mere eleven discrete pitches and a functionally limited arrangement of rhythmical patterns. This has caused some to consider it as “the most restrictive art form there is”.[92]

Musical “borrowing” is inevitable. In fact, musical borrowing within the musical world is a recognized and legitimate practice and has been described as a “’common heritage’ shared by all peoples irrespective of their places in various social and economic strata.”[93] It has been noted in both the sacred Gregorian chants and in the popular music of street performers of the medieval period.[94] This custom is evident with many historical musical creators such as Handel, Bach, Brahms, Beethoven, and Mozart recycling past music and continues with many popular musicians. Musical borrowing is not only necessary, it is used as a pedagogical tool to help students of music learn both compositional[95]techniques and expand the “common heritage” through reinterpretation.

Copyright only attaches to the content of the expression of ideas that is sufficiently specific and fixed. Copyright does not protect ideas or facts,[96] scènes à faire elements,[97] or common devices.[98] Where an idea is sufficiently general and can only be expressed in limited ways or is a necessary implication of its expression, the idea and expression are considered to be merged with no copyright vesting.[99] The scènes à faire doctrine eliminates any mandatory or customary elements integral to its genre. This includes musical meters,[100] scales,[101] arpeggios,[102] and standard chord progressions.[103]

Given that music is experienced holistically rather than with an appreciation for each musical element discretely, Valeria Castanaro suggests that it is simply not possible to separate musical ideas from their mechanical ideas.[104]Isolating musical elements and separating them from the musical work would destroy the musical experience. Aaron Keyt asserts that “[i]n music, there is no ‘idea’ or ‘expression’ to be distinguished . . . it is an impossible distinction to make”.[105] This would invite the possibility of an analysis of musical works according to the merger doctrine. Because the musical ideas are individually generic and impossible to separate from the musical work, when the elements are combined into musical expression they merge with that expression failing to attract copyright protection. By this standard, music by its very nature should escape the grasp of copyright’s reach entirely.

Following from these significant biological, cultural, and social benefits, it is difficult to prioritize private ownership rights as current copyright law insists. Music is everywhere and ingrained in much of what we do. Its capacity to heal, inspire, and unite goes beyond a price-tag approach. We, as caring humans, are biologically and socially programmed to strive beyond “thingification”. [106] Music by convention and design is not original. Because it is an aural art experience it fails to separate its idea from its expression and is incompatible with the architecture of copyright law. Music is distinct from other intellectual arts and should be removed from the exclusive rights regime of copyright law. The following movement expands on this plea by analyzing music according to some traditional justifications for copyright. 

3rd Movement: Scherzo & Trio – The Justification Joke

In our society, the exchange of expressions of intellect is considered to have value. The objective in Canadian copyright law is the balance between user rights and creator rights. Instrumental in this design is originality. For copyright to be engaged, the musical work must be “original”.[107] This means that it must not be copied and must originate from the author using more than a trivial amount of skill and judgment.[108]

Justification for imposing a monopoly over intellectual expressions is typically viewed according to three theoretical approaches to originality. The English case of Walter v Lane[109] illustrates this conundrum with reasons for imposing copyright protection divided between a labour model, an authorship model and a public interest model.[110]

Labour

Based on the premise that intellectual creations are proprietary, John Locke, a natural law theorist concocted a theory that the common good was for all to share with ownership rights derived from the “fruits of one’s labour”.[111] Locke holds that should there be two provisos to ownership: (1) that there be “enough, and as good left in common for others”; and (2) that no person shall take from the common more than he can use.[112]

This recognizes that private ownership by its very nature, diminishes the common good. The first proviso commonly known as the “no loss” provision suggests that where property is separated and protected from the commons, it must only be to the extent that it does not compromise the public interest. Based on the practice that all music builds on what has come before, the removal of a “’gateway idea’ from the intellectual commons contravenes the no loss requirement”.[113]

The second proviso, commonly known as the “no-waste proviso” indicates that appropriation from the commons for longer than its useful life violates the requirements for private ownership. In a copyright sense, much of the body of music has a useful shelf-life. Keeping music from the commons for longer than would be socially useful violates this proviso. The current duration is arguably far longer than optimal with “spoilage” inevitable.[114] Edwin Hettinger notes that where nonexclusive property (such as music) is separated from the commons or where a fee is charged for its use, “certain beneficial uses of these intellectual products are prevented. This is clearly wasteful, since everyone could use and benefit from intellectual objects concurrently”.[115] Arguably, ownership based on a labour principle is in direct violation of the nature of music.

Authorship

The authorship model is constructed on the idea that copyright vests in the one who creates the property from their intellect. But beyond simply the addition of labour, the author is bestowed rights simply as a consequence of their genius. For the contribution of something more that trivial “skill and labour”, the author is automatically granted an exclusive monopoly.[116] The archetypal image might be the creative genius fervently scripting their next masterpiece.  Out of reverence for their mystical skills,  a lifetime of protection is awarded. As Oren Bracha observes, it is this idea of “solitary authors creating original ideas ex nihilo through their intellectual labors [that] lies at the normative heart of our vision of copyright.”[117] However, there are significant inconsistencies between the normative ideas central to copyright law and how they transpire in practical terms. 

Notably, “author” is not defined in the Act. When dealing with music, “author” is synonymous with “composer”, “composer-performer”, and even “audience”. As discussed, rights can also vest in those associated with a “musical work” such as performers, publishers, record producers, and broadcasters. As a communicative art, music does not have just one person who creates a “musical work” but involves the ongoing and simultaneous participation of many.

Without the great author, justification for exclusive rights falls apart. The problem is in the disconnect between the image of the creative genius and how originality operates within copyright law. While works must be the product of the author’s independent intellect and not copied, the element of creativity has been eschewed in Canada. 

The ontological question posed by Yeats reflects on the relationship between “form, function and being”.[118] To be is to create. If the purpose of music is to live through sound, its true magic only comes alive on reception. To experience music is to actively engage and be with the music. As Lynne Conner describes, by being present, the audience becomes “the ‘co-author’ of the art experience”.[119] In the words of Roland Barthes: “The text is a fabric of quotations resulting from a thousand sources of culture”.[120] Each audience member with their own subjectivity renews and imbues the creative experience with unique meaning. It is in the sharing of the artistic experience that rejuvenates its value for each person. Carys Craig shares this sentiment with her plea to recognise users “as active and equal participants in the very process of meaning-making and exchange that underpins copyright norms”.[121]

Copyright law, in conferring the author of a work with exclusive rights, misses the point of the musical experience. The job of the author is to nourish, while the job of the receiver is simply to be.[122] Its voice is in experience. As Carys Craig and Ian Kerr point out, “the entire point of the social prac­tice of authorship is precisely this discursive participation in the dialogic process of human interaction and the mutually constitutive creation and exchange of text, meaning, and identity”.[123] Rather than the product of just one individual, a musical work exists simply to be absorbed and relationally transformed by the receiver. It is the user rather than the creator who continues the creative dialogue. 

Music encompasses a massive variety of “authors” with each holding exclusive rights just by virtue of their place in the process. This is not only heavily weighted on the creator side of the scale, its organization is counter-intuitive and counter-productive with respect to the role of music in society. As many have called for before, it is time for the death of the romantic author.[124] This applies not only to copyright law generally, but specifically to the all of the various “authors” of music. 

Public Interest

The third common justification for copyright protection is ironically, the public interest. In copyright law, the public interest is manifested as the public domain. In Canada, the protection of intellectual property is considered as a “copyright balance”[125] between the rights of authors to benefit from their intellectual work and the rights of users to use intellectual works. In a literal sense, the public domain refers to expressions of the intellect that are not protected by copyright law and free to use by the public. In a larger sense, it encompasses a “deliberate recognition of individual rights in the public domain”.[126] Rather than as just something beyond ownership rights, David Lange encourages us to think about the public domain as having “an affirmative existence of its own”.[127] Because authors rely on the public domain as a repository of raw materials for their creations, the development and maintenance of a robust public domain is key to incentivizing creation ongoingly.[128] Lange conceptualizes the public domain as “a place like home, where, when you …[are] there, they have to take you in and let you dance”.[129]

Yochai Benkler describes the public domain in terms of “the range of uses of information that any person is privileged to make absent individualized facts that make a particular use by a particular person unprivileged”.[130] Generally, the public domain can be thought of as the unprotected body of intellect. However, in Canada, this requires the consideration of how much is taken and for what purpose. It is only an infringement to copy or use a substantial part of the expression. Where an insubstantial part is used, no infringement will be found. Additionally, there are exceptions that permit certain types of use for which permission is not required.[131]

In quest of the copyright balance, the court reminds us that user rights “must not be interpreted restrictively”.[132] “The proper balance … lies not only in recognizing the creator’s rights but in giving due weight to their limited nature”.[133]As part of this plan, Justice Abella has insisted that the public interest continue to be supported through “a robust vision of technological neutrality as a core principle of statutory interpretation under the Copyright Act”.[134] Two important user rights include fair dealing and the user-generated content exception and as we will see, neither of these exceptions are truly viable when it comes to music.

Fair dealing exceptions include use for the purpose of research, private study, education, parody or satire, criticism or review, and news reporting.[135] Craig notes that a more general public interest defence may also be available in Canada but has yet to be tested.[136] This means that music may be used by the public without consent when used for one of the enumerated purposes. The test being: “(1) the activity must fall within an allowable purpose …; and (2) the activity must then satisfy CCHs fairness criteria”.[137] Although there are no set rules about what is “fair”, the court has suggested a list of factors to assist with its “analytical heavy-hitting”[138] including: “(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work”.[139] 

Giuseppina D’Agostino reflects that cases such as CCH,[140] SOCAN v Bell,[141] and Alberta (Education)[142]“clarify that it is the end user’s perspective that counts”.[143] While this approach is described as moving “from fair dealing as an exception to fair dealing as a user right”,[144] as a contextual approach, it lacks specificity and generates confusion thus precluding it from practical reliance. Those who may qualify under this exception to use protected material because it may be considered “fair” dealing can be effectively prohibited from doing so simply because it is not so easy to evaluate fairness in the circumstance. For example, a student who is performing a piece long relegated to the public domain (perhaps a piece by Johann Sebastian Bach[145]) in an annual recital would require analysis on several points in order to assess whether the performance would be considered “fair”. Education is apparently not created equally in the Act and while “[f]air dealing for the purpose of … education… does not infringe copyright”,[146]the Act goes on to exclusively discuss fair dealing in terms of “educational institutions”.[147] Further, the exception only applies where a work is not “commercially available” meaning that it is “available on the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort” and a licence is not “available from a collective society within a reasonable time and for a reasonable price and may be located with reasonable effort”.[148] Additionally, it “may not be carried out with motive of gain”[149] explained as “no more than the costs, including overhead costs, associated with doing that act”.[150] As previously discussed, whether “work” refers to the notes on the page or the sound produced is unclear. Further, what is reasonable in the circumstance is a matter of fact that will change from one situation to another. What value is an exception that requires a team of lawyers and accountants to assess! 

And to add even more complexity, should it matter if the performance is done in person or online? Internet algorithms are simply not adequately sophisticated to assess fair dealing exceptions with penalties invoked without regard to this aspect of the law.[151]

The fair dealing exceptions, although an attempt to better balance the copyright scale, are impractical as a workable guide. To remain true to the use of “fair”, this exception must be made much clearer and less obtrusive to be of any real use. 

Arguably, the analysis of “fair” should not even be considered for debate when conceived in terms of property law principles. Because music is composed of primarily borrowed and non-protectable elements it is bewildering that exclusive rights over an entire work, including its unprotectable components, are bestowed on its many authors. Even in standard property law terms, without a bona fide purchaser for value, title in these elements would not exclusively pass to the author who collects and arranges them. Without an owner, this music belongs to the common stock thus dismissing the rationale for a fairness analysis entirely. In terms of Roman property concepts, although the author has reformed the essential elements into something new, conceived as a process of specification, because the new idea cannot be separated from its substance, the recycled music should arguably belong to the original owner being the collective rather than being transferred to the new author alone. In contemporary terms, as discussed above, this melding violates the idea/expression dichotomy essential for copyright protection. Composing music simply does not and indeed cannot create a new species to be assumed by the recycler and by definition should properly remain in its entirety to all.[152]

Music has a natural human appeal. The non-commercial user-generated content exception[153] allows for users to use expression in which copyright subsists to create a derivative work for non-commercial purposes.[154] Craig observes that “the copyright system is built around an essentially moral divide between original (independent) authorship and downstream (derivative) expression”.[155] While the repurposing of musical expression has been around since ancient times, digital technology has advanced these capabilities to new heights. There is now an endless array of possibilities that can be mixed together to create novel expressions. This is more than simply an extension of the long history of musical borrowing, it exemplifies the communicative nature of music.

 All told, this exception, although promising to be in the public interest in recognizing that “culture is built upon the work of others”,[156] falls short of being a practical response to the exclusive rights of authors. Similar to the issues noted with the fair dealing exception, vague terminology and inconsistencies in their intersection simply makes this exception unreliable. Of particular note include the terms “commercial”, “dissemination”, and “authorization”. The standard for “commercial” is unclear. This is especially relevant when primarily relegated to an online platform and Teresa Scassa questions whether this exception applies to individuals or extends to those who disseminate the derivative work on a mass scale.[157] Jurisdictional issues simply compound the issue with the global reach of the internet. Again, technological algorithms are ill-equipped to assess this type of exception. 

Although copyright law has made attempts to address its systemic imbalances, these remedies are insufficient to adequately balance the copyright scales. Short of removing music entirely from the copyright sphere, much more needs to be done to improve the experience of user within this regime. For users to have any access at all, the rules need to be adjusted with greater clarity and precision with a presumption of the right to use over the right to constrain. Given the discussion above, arguably, music in its entirety, should be included as an exception to copyright protection. It is different, it is used differently, and it is experienced differently. By all accounts –  labour, authorship, and the public interest – protection over music is simply not justifiable. The joke it seems is on the law itself. The urgency to share and interact with music is so ingrained in human experience that users simply disregard regulatory controls to interact with music as has been developed naturally for centuries.[158] Copyright law will either have to attenuate its reach or perish through populist sway.

4th Movement: March –Music as Unique Experience

Music as the only aural art is received through hearing. This has significant implications not only for the application of copyright but also for its enforcement against infringement. 

Copyright protects only those aspects of a work that are original. This protection lasts for the duration of the author’s life to the end of the calendar year in which they die plus an additional fifty years.[159] Infringement involves doing anything that is within the author’s exclusive purview as granted by the Copyright Act without their consent. It is found where the expression of the user is objectively substantially similar[160] and there is a substantial part in both quality and quantity of the original work in the new work.[161]

The test for infringement is “sufficient objective similarity… and a causal connexion between the copyright work and the infringing work”.[162] Unconscious copying requires “evidence of access or a causal connexion between the two works”.[163] The original work must be produced or reproduced from copying and the amount that is copied must be a substantial part of the original work. Access to the original work must be established and the similarity must be caused by copying. Neither knowledge nor intent is required for infringement and it can be found even where the copying was due to an unconscious process.[164]  Objective similarity is assessed according to the likelihood of copying. This involves both a theoretical analysis of the work as well as consideration of the “effect on the ear”.[165]

In the originality analysis, “substantial part” is assessed both qualitatively and quantitatively by considering the portion copied with respect to the entire original work. Even a small fragment can be considered a substantial part where it is “a vital, and an essential part…”[166] For example, the court found that even a short twenty second segment infringed the much longer work.[167] It was enough that the listener would “recognize [it] as being the essential air…”.[168] The test is, “whether the average lay observer, at least one for whom the work is intended, would recognize the alleged copy as having been appropriated from the copyrighted work.”.[169] This “recognizability test” is very similar to the “lay-listener test” used to establish substantial similarity in some United States circuit courts. The lay-listener test asks “whether defendant took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed”.[170]

To assess infringement of a musical work, the musical features and structure may be analysed according to a list of factors such as: “(i) the structure…; (ii) whether [it is] an essential part…, and whether [it has] been borrowed…; (iii) whether the theme… combines…[clichés] originally; (iv) whether there is a noticeable correspondence…; (v) whether the harmonic structure… is the same; and (vi) the importance of … rhythm”.[171] The ultimate question being “whether the degree of similarity can be said to be definite or considerable”.[172]

The difficulty with this test is three-fold: (1) music is experienced in the moment; (2) perception of music is highly subjective; and (3) it fails to account for musical elements that are not original over which no copyright protection may lie. 

Music is only experienced in the moment and cannot be simultaneously compared with other music. Details get missed when having to compare two pieces of music asynchronously as compared with the synchronous type of appraisal that can be performed for activities allowing for visual comparisons such as that used for books,[173] fabrics, [174] or films.[175] Our appreciation of the music is assessed through an holistic and ongoing process with some elements like timbre easier to recognize than others.[176] Judge Learned Hand’s observes that “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them and regard their aesthetic appeal as the same”.[177]

Music is perceived uniquely. The elements of music such as pitch and rhythm are processed between brain hemispheres differently between listeners.[178] Some are simply better music listeners than others, and some even suffering from amusia or tone deafness, yet the recognizability test assumes that everyone is of average ability.[179]  As Lund observes, “aural appreciation of music can be deeply flawed, and is more directed by similarity of timbre[180]  than the similarity or prominence of musical events.[181] “[R]ecognition of similarity is an acquired skill”.[182] Lucy Pollard-Gott reveals how greater familiarity with some music impacts its recognition. The ears are somewhat searching for familiar sounds.[183]

Lay-listeners are ill-equipped to distinguish between novel musical expression and musical expression that is within the public domain. This can include popular or traditional tunes or fragments of tunes, scales, and stylistic rhythms. One example is the descending chromatic line over a common chord progression of “Stairway to Heaven” by Led Zepplin. Rather than being copied from “Taurus” by the band Spirit, it was shown to have been derived from the opera of Dido and Aeneas by Henry Purcell in 1689.[184] Additionally, when left to a lay-listener test, similar styled songs can be deemed to be infringing based on non-protectable elements such as groove[185] as was the case when “Blurred Lines” by Robin Thicke and Pharrell Williams was found to have infringed “Got to Give It Up” by Marvin Gaye despite their differences with respect to song structure, chord progression, and lyrical content.[186]

As discussed earlier, music is everywhere. The ubiquitous nature of music provides the perfect climate for earworms to develop. Where music is produced, not from actual or direct copying but from a process of unconscious replication, infringement can be found without intention. Such was the case when Michael Bolton wrote “Love is a Wonderful thing” where it was found to be due to a process of subconscious copying of the Isley Brothers song of the same name.[187] As Joseph Santiago notes, given the wide dissemination of music in our digital age, “[t]he element of subconscious copying is particularly troublesome in music”.[188] Current music is necessarily a product of past music and similar sounding material is not necessarily compositionally similar. Given the proliferation of music in our digital era combined with reliance on an objective average reasonable listener test, almost any music can be found to be copied. These difficulties in assessing substantial similarity for music have caused some scholars to call for a legal test that accounts for the uniqueness of music.[189]

Digital technology has also exacerbated the issue about how much is too much. The practice of music sampling allows for music to be digitally copied and incorporated into other musical works. In the US, “substantial” copying has enjoyed inconsistent interpretation. For example, in Newton v Diamond,[190] the use of a three-note sequence by the Beastie Boys was considered too small to constitute infringement while Bridgeport Music, Inc. v Dimension Films[191]decided that any sampling regardless of length would be infringing and found a three-note sequence to be infringing.[192]

Music is experienced differently. The mechanics of copyright and the mechanics of musical expression and listening are simply set at cross-purposes. The test for infringement is incompatible with the subjective perceptive skills of a lay listener. The fact that music is necessarily borrowed makes the recognizability test redundant. Music does not belong within the copyright regime.

Coda: Conclusion

It is time for copyright law to give birth to the life of the listener. To allow it, kicking and screaming, into the statutory space and care for all of its biological, cultural, and social needs. “We are the music makers, and we are the dreamers of dreams”.[193] Music is in our very bones. It is who we are. To separate music from its function is to deny our very personhood. 

It is time for copyright law to listen to the music and respond with change. Music does not fit as being something that requires protection from its purpose. It is created for people, by people, and rightly belongs to all the people. Trying to impose artificial restraints on its liberty only makes the strains for access all the more incessant. 

And the music sounds…[194]

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[1] Richard Barton Lewis (Producer) & Kirsten Sheridan (Director). (2007). August Rush [Motion Picture]. United States: Warner Bros. Pictures.

[2] A reflection on the comparison between saving time in a bottle, as the popular song, “Time in a Bottle” by Jim Crocé (Jim Crocé, “Time in a Bottle” in You Don’t Mess Around with Jim (New York: ABC Records: 1972), muses, and the phrase of “in the can” developed when music was recorded onto magnetic tape and stored in cans.  Even music that is “protected” through copyright law escapes its clutches as people are naturally drawn to sharing music. This is evidenced by the popularity of the mix-tape phenomenon, the sharing of music files over online peer-to-peer systems, and the proliferation of music shared over social media. The term “canned” also suggests that music is not a fixed idea that can be captured by protected formulas. Music is designed to be free and users respond by creating derivatives ongoingly. 

[3] William Butler Yeats, The Poems of W.B. Yeats: A New Edition, “Among School Children” (London: Macmillan Publishing Company: 1933) [Yeats].

[4] Scherzo is translated as “musical joke”.

[5] IceTV v Pty Limited v Nine Network Australia Pty Limited, [2009] HCA 14 at para 28 [IceTV].

[6] Théberge v Galerie d’Art du Petit Champlain Inc, 2002 SCC 34, [2002) 2 SCR 336 at para 5 [Théberge].

[7] Copyright Act, RSC 1985, c C-42, s 3(1) [Copyright ActThe Act].

[8] Copyright Actsupra note 7, s 5(1).

[9] Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 (CanLII), [2012] 2 SCR 326 at 10 [Bell] citing David Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks 2nd ed (Concord: Irwin Law, 2011) at 60 [Vaver].

[10] Ibid.

[11] EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd, [2011] FCAFC 47 at para 38 [EMI] citing Copyright Act 1842, 5 & 6 Vict. C. 45, s 20.

[12] Edward B. Samuels, The Illustrated Story of Copyright (New York, NY: Thomas Dunne Books: 2000) at 31 – 32, 131, 136 online: <http://www.edwardsamuels.com/illustratedstory/> [Samuels].

[13] J M Keyes, “Musical Musings: The Case for Rethinking Music Copyright Protection” (2004) 10 Mich. Telecomm. & Tech. L. Rev. 407 at 414 [Keyes] citing The History of the Edison Cylinder Phonograph, online: <http://memory.loc.gov/ammem/edhtml/edcyldr.html>.

[14] Copyright Act 1911, c 46, s 1(1) (UK) [1911 UK Act].

[15] Copyright Act, 1921, SC 1921, c 24 [1921 Act].

[16] Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, last revised at Paris on 24 July 1971, 1161 U.N.T.S. 30, art 11 online: <www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html> [Berne Convention, Berne] (“The stipulations of the present Convention shall apply to the public representation of dramatic or dramatico-musical works and to the public performance of musical works, whether such works be published or not.”).

[17] Ibid, art 13 (“The authors of musical works shall have the exclusive right of authorizing (1) the adaptation of those works to instruments which can reproduce them mechanically; (2) the public performance of the said works by· means of these instruments.”).

[18] Ibid, art 14 (“Authors of literary, scientific or artistic works shall have the exclusive right of authorizing the reproduction and public representation of their works by cinematography.”).

[19] Bishop v Stevens, [1990] 2 SCR 467 at pp 473 – 74.

[20] Barry Sookman, Steven Mason & Carys Craig, Copyright Cases and Commentary on the Canadian and International Law (Toronto, ON: Carswell: 2013) at 306 [Sookman].

[21] [1993] 2 FC 115 (FCA).

[22] Sookman, supra note 20 at 306.

[23] Copyright Actsupra note 7, s 5(1).

[24] Copyright Actsupra note 7, s 2.

[25] Copyright Actsupra note 7, s 2.

[26] Copyright Actsupra note 7, s 18.

[27] Copyright Actsupra note 7, s 18.

[28] Copyright Actsupra note 7,  s 21.

[29] Guillaume Laroche, “Settling the Score: Copyright in Modern Editions of Public Domain Musical Works” (2014) Osgoode Legal Studies Research Paper Series 80 at 91 online: h3p://digitalcommons.osgoode.yorku.ca/olsrps/80> [Laroche].

[30] Laroche, supra note 29 at 92 citing Vaver, supra note 9.

[31] Laroche, supra note 29 at 89.

[32] Laroche, supra note 29 at 96 – 97.

[33] Laroche, supra note 29 at 100 citing generally Michael Birnhack, “More or Better? Shaping the Public Domain” in L Guibault & PB Hugenholtz, eds, The Future of the Public Domain (Netherlands: Kluwer Law International: 2006) at 59.

[34] [2004] EWHC 1530 (Ch.); [2004] 4 All ER 418.

[35] Laroche, supra note 29 at 88.

[36] Sookman, supra note 20 at 337.

[37] Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 26 October 1961, 496 U.N.T.S 43, online: <www.wipo.int/ treaties/en/ip/rome/trtdocs_wo024.html> [Rome Convention].

[38] Carys J Craig & Bob Tarantino, “’An Hundred Stories in Ten Days’: COVID-19 Lessons for Culture, Learning, and Copyright Law” (2021) 57:3 Osgoode Hall LJ 567-604 at 572 online: <https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss3/3> [Craig & Tarantino].

[39] Sookman, supra note 20 at 337 citing WIPO, International Bureau of WIPO, “Basic Notions of Copyright and Related Rights” at para 55.

[40] Copyright Act, supra note 7, ss 17.1 – 17.2.

[41] Copyright Actsupra note 7, s 2.

[42] Sookman, supra note 20 at 829.

[43] Sookman, supra note 20 at 834.

[44] Canadian Cable Television Association v Canada (Copyright Board), (1993), 46 CPR 3(d) 359 (FCA).

[45] Australasian Performing Right Assn. Ltd. v Commonwealth Bank of Australia, ( 1992), 251 PR 157 (Aust. Fed. Ct.) [Australasian].

[46] Jennings v Stephens, [1934] 1 Ch. 469 (CA).

[47] Sookman, supra note 20 at 833.

[48] Australasian, supra note 45.

[49] Copyright Actsupra note 7, s 2.3.

[50] Copyright Actsupra note 7, s 2.

[51] SOCAN v Canadian Association of Internet Providers, 2004 SCC 45.

[52] R v Goldman (1979), 108 DLR (3d) 17 (SCC).

[53] Sookman, supra note 20 at 887 citing CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13 [CCH].

[54]  Rogers Communications Inc. v SOCAN, 2012 SCC 35 at 54 citing Vaver, supra note 9 at 173.

[55] Jamie Lund, “Fixing Music Copyright” (2013) 79 Brook L Rev at 68 online: <h1ps://brooklynworks.brooklaw.edu/blr/vol79/iss1/2> [Lund] citing Automatic Toys, “Beck—Do We? We Do!” (08 Sept 2012) YouTube online: <http://www.youtube.com/watch?v=Zc0fnEY89Co>.

[56] Ibid.

[57] Ibid at 62 (although this references American law, the same holds true in Canada).

[58] Ibid.

[59] Ibid at 64.

[60] Keyes, supra note 13 at 422 citing Anthony Storr, Music and the Mind 2nd ed, (Michigan: Free Press: 1992) at 4.

[61] Popular quote attributed to Plato.

[62] Keyes, supra note 13 at 421 citing Don Campbell, The Mozart Effect (Toronto: HarperCollins: 1997) at 18 – 26 [Campbell].

[63] Keyes, supra 13 at 422 citing Georgi Lozanov, Suggestology and Outlines of Suggestopedy (London: Gordon & Breach Science Pub: 1978); Sheila Ostrander & Lynn Schroeder, Superlearning 2000 (New York: Dell: 1994); Campbell, supra note 62 at 72, 75; Michael Thaut et al, “Analysis of EMG Activity in Biceps and Triceps Muscle in an Upper Extremity Gross Motor Task under the Influence of Auditory Rhythm” (1991) 28 J of Music Therapy 64, 64-68; and Bill Gottlieb, Sound Therapy: New Choices in Natural Healing (Emmaus, PA: Rodale Books: 1995).

[64] Daniel Leubner & Thilo Hinterberger, “Reviewing the Effectiveness of Music Interventions in Treating Depression” (2017) 8:1109 Front Psychol online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5500733/>.

[65] Nora Landis-Shack, Adrienne J Heinz, and Marcel O Bonn-Miller, “Music Therapy for Posttraumatic Stress in Adults: A Theoretical Review” (2017) 27:4 Psychomusicology 334.

[66] Gloria M Gutman & Judy Killam, “Special Care Units for Dementia: Staff and Family Perceptions” (1991) The Gerontology Research Centre, Simon Fraser University.

[67] Kevin Kirkland, “Music Therapy in Alzheimer and Dementia Care” online: < https://musicheals.ca/client_populations/music-therapy-in-alzheimer-and-dementia-care/>.

[68] Ibid.

[69] Stephanie Levitz “Canada supports review of patent protections for COVID-19 vaccines” Toronto Star (6 may 2021) online: <https://www.thestar.com/politics/federal/2021/05/06/canada-supports-review-of-patent-protections-for-covid-19-vaccines.html>.

[70] Samuel Paul Veissière, Culture, Mind, and Brain, Psychology Today. October 28, 2015 online: <https://www.psychologytoday.com/ca/blog/culture-mind-and-brain/201510/caring-others-is-what-made-our-species-unique>.

[71] Sandra E Trehub, Judith Becker, and Iain Morley, “Cross-cultural perspectives on music and musicality” (2015) 370:1664 Phil Trans R Soc B at 3 online: <http://dx.doi.org/10.1098/rstb.2014.0096> [Trehub].

[72] Carys J Craig, Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law (Cheltenham, Gloucestershire: Edward Elgar Publishing: 2011 at 227 [Craig 2011] citing Charles Taylor, Hegel and Modern Society (Cambridge: Cambridge University Press, 1978) at 165; Richard Moon, “The Scope of Freedom of Expression” (1985) 23 Osgoode Hall LJ 331 at 340–48.

[73] Section 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11 [Charter] (freedom of expression is only limited by violence or the threat of violence).

[74] Irwin Toy Ltd v Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927 [Irwin Toy].

[75] Craig 2011, supra note 72 at 218 citing L Ray Patterson, “Free Speech, Copyright and Fair Use” (1987) 40 Vand L Rev 1 at 9.

[76] Craig 2011, supra note 72 at 204.

[77] Keyes, supra note 13 at 427 citing Alfred M Shafter, Musical Copyright (Eagan: Callaghan and company: 1932) at 1 [Shafter]; E DeMatt Henderson, “The Law of Copyright Especially Musical” (1939) 1 Copyright Law Symposium 125, 150 at 1.

[78] Craig 2011, supra note 72 at 227.

[79] See Damian Keller, Victor Lazzarini, and Flavio Luiz Schiavoni, “Ubiquitous music: Perspectives and Challenges” (2019) 48:2 at 1 citing M Weiser, “The computer for the 21st century” (1991) 265:3 Scientific American 94 online: <https://www.researchgate.net/publication/335566688_Ubiquitous_music_Perspectives_and_challenges/link/5e554ec04585152ce8ee5318/download> (in comparing ubiquitous music with ubiquitous computing principles advanced by Weiser).

[80] Keyes, supra note 13 at 425 citing Fred Fisher Inc. v Dillingham, 298 F. 145, 147 (SDNY 1924) at 147.

[81] Trehub, supra note 71 at 2 citing P Bohlman World music (Oxford, UK: Oxford University Press: 2002) [Bohlman]; and L L Balkwill & W B Thompson. “A cross-cultural investigation of emotion in music: psychophysical and cultural cues” (1999) 17:1 Music Percept. 43. 

[82] Trehub, supra note 71 at 2 citing Bohlman, supra note 81.

[83] Trehub, supra note 71 at 2 citing R Stone, Let the inside be sweet: the interpretation of music event among the Kpelle of Liberia (Bloomington, IN: Indiana University Press: 1992) at 7.

[84] Trehub, supra note 71 at 3 citing J James, The Music of The Spheres: Music, Science and the Natural Order of the Universe (New York, NY: Grove: 1993). 

[85] Trehub, supra note 71 at 3 citing L Sullivan, Enchanting Powers: Music in the World’s Religions (Cambridge, MA: Harvard University Press: 1997). 

[86] Keyes, supra note 13 at 425 citing Jenny Toomey, “The Future of Music” (2002) Tex Intell Prop LJ 221 at 231 – 32.

[87] Greek metaphor attributed to Bernard of Chartres in the 12th century.

[88] Craig 2011, supra note 72 at 106 citing Jessica Litman, “The Public Domain” (1990) 39 Emory LJ 965 at 969 [Litman].

[89] Pitch refers to how high or low a note sounds. It is produced by air waves that are created through singing or playing and received by listening. Air waves that oscillate faster sound higher and slower waves sound lower. 

[90] Rhythm is merely an exercise in fractions. It describes how short or long a pitch will sound. Typically, western music is delivered in either thirds or fourths. Each unit can then be divided in half to sound twice as slow or multiplied by two to sound twice as fast. The bulk of music is written with four beats in a bar with each beat possibly divided four times.

[91] Western music refers to music that was originally developed in Europe. 

[92] Joseph M Santiago, “The ‘Blurred Lines’ of Copyright Law: Setting a New Standard for Copyright Infringement in Music” (2017) 83 Brook L Rev at 303 online: <h4ps://brooklynworks.brooklaw.edu/blr/vol83/iss1/18> [Santiago]; Bridgeport Music, Inc. v Dimension Films, 401 F.3d 647, 653 (6th Cir. 2004) [Bridgeport].

[93] Keyes, supra note 13 at 1 citing Shafter, supra note 77 at 1.

[94] Keyes, supra note 13 at 427.

[95] Keyes, supra note 13 at 427.

[96] CCH, supra note 53 at para 22

[97] Preston v 20th Century Fox Ltd. (1990) 33 C.P.R. (3d) 242 (Federal Court) [Preston].

[98] Ibid.

[99] Delrina Corp. (Carolian Systems) v Triolet Systems Inc. [2002] OJ No 3729.

[100] The regular rhythmical organization of musical patterns in music.

[101] The sequential laddering of consecutive notes.

[102] The sequential laddering of consecutive notes usually belonging to a chordal center.

[103] The sequential ordering of harmonic patterns.

[104] Valeria M Castanaro, “It’s the Same Old Song: The Failure of the Originality Requirement in Musical Copyright” (2004) 18 Fordham Intell. Prop. Media & Ent. LJ 1271 at 1282 [Castanaro] citing Aaron Keyt, “An Improved Framework for Music Plagiarism Litigation” (1988) 76 Cal L Rev 429 at 421–22 [Keyt].

[105] Castanaro, supra note 104 at 1282 citing Keyt, supra note 104 at 408 – 09.

[106] Carys Craig, “Critical Copyright Law & the Politics of ‘IP’” in Emilios Christodoulidis, Ruth Dukes, & Marco Goldoni (Toronto: Edward Elgar Publishing: 2019) at 6 citing Felix Cohen, “Transcendental Nonsense and the Functional Approach” (1935) 35(6) Colum L Rev 809, 815.

[107] Copyright Actsupra note 7,  s 5.

[108] CCH, supra note 53 at para 16.

[109] [1900] AC 539 (UKHL).

[110] Craig 2011, supra note 72 at 120 citing Abraham Drassinower, “Sweat of the Brow, Creativity and Authorship: On Originality in Canadian Copyright” (2003–04) 1 U of Ottawa L & Tech J 107 at 112–16 [Drassinower].

[111] John Locke, “Second Treatise of Civil Government” in P. Laslett, Locke: Two Treatises of Government, 3rd ed (Cambridge: Cambridge University Press: 1968) at 26 [Locke].

[112] Ibid at 33.

[113] Carys J Craig, “Locke, Labour, and Limiting the Author’s Right: A Warning Against a Lockean Approach to Copyright Law” (2002) 28:1 Queen’s LJ 1 at 24 [Craig 2002].

[114] Government of Canada, “Consultation on how to implement Canada’s CUSMA commitment to extend the general term of copyright protection” (2021) online: <https://www.ic.gc.ca/eic/site/693.nsf/eng/00189.html> (Canada’s obligations under the Canada-United States-Mexico Agreement (CUSMA) extends the current duration for copyright, commonly described as “life-plus-fifty” to “life-plus-seventy”. This must be implemented into domestic law by December 31, 2022).

[115] Craig 2002, supra note 113 at 33 citing Edwin C Hettinger, “Justifying Intellectual Property” (1989) 18 Phil. & Pub. Aff. 31 at 44.

[116] Copyright Act, supra note 7, s 6.

[117] Carys Craig and Ian Kerr, “The Death of the AI Author” 2021 CanLIIDocs 468 at 49 [Craig & Kerr] citing  Oren Bracha, “The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright” (2008) 118:2 Yale LJ 186 at 188 [Bracha]. 

[118] Lynne Conner, “Who Gets to Tell the Meaning?: Building Audience Enrichment” (Winter 2004) 15:1 GIA Reader at 1 [Conner].

[119] Conner, supra note 118 at 2.

[120] Roland Barthes, The Rustle of Language (New York: Hill and Wang: 1986) at 49, 53 [Barthes].

[121] Craig 2011, supra note 72 at 53. 

[122] Ronald Barthes, Image, Music, Text (London: Fontanan, 1977) 142-148 at 145-146 [Barthes 1977].

[123] Craig & Kerr, supra note 117 at 55.

[124] Barthes, supra note 120; Barthes, supra note 122; Craig & Kerr, supra note 117; Bracha, supra note 117 at 188; Teresa Scassa, “Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law” in Geist, Michael, ed, The Copyright Pentalogy, How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (Ottawa: The University of Ottawa Press, 2013), online: <https://books.openedition.org/uop/989?lang=en> [Scassa].

[125] Thébergesupra note 6 at 30.

[126] Carys J Craig, “The Canadian Public Domain: What, Where, and to What End?” (2010) 7 Canadian Journal of Law and Technology 221 at 221-222 [Craig 2010] citing David Lange, “Recognizing the Public Domain” (1981) 44 Law & Contemp. Probs. 33 at 59 [Lange 1981].

[127] Craig 2010, supra note 126 at 234 citing David Lange, “Reimagining the Public Domain” (2003) 66 Law & Contemp. Probs. 463 at 473 [Lange 2003].

[128] Craig 2010, supra note 126 at 234-235 citing Litman, supra note 88 at 998.

[129] Craig 2010, supra note 126 at 237 citing Lange 2003, supra note 117 at 470.

[130] Craig 2010, supra note 126 at 227 – 228 citing Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain” (1999) 74 NYUL Rev 354 at 362 [Benkler].

[131] Craig 2010, supra note 126 at 228 citing Ronan Deazley, Rethinking Copyright: History, Theory, Language (Northampton: Edward Elgar, 2006) at 107.

[132] CCHsupra note 53 at para 48.

[133] Thébergesupra note 6 at 31.

[134] Canadian Broadcasting Corp v SODRAC 2003 Inc, 2015 SCC 57 at paras 147 – 48.

[135] Copyright Actsupra note 7, ss 29 – 29.2. 

[136] Craig, supra note 126 at 228 citing R v James Lorimer & Co (1983), [1984] 1 FC 1065, 77 CPR (2d) 262 (FCA) and Cie générale des établissements Michelin — Michelin & Cie v CAW-Canada (1996), [1997] 2 FC 306, 71 CPR (3d) 348 (Fed TD)) [Michelin].

[137] David Vaver, “Copyright Defenses as User Rights” (2013) 60:4 Journal of the Copyright Society of the USA 661 at 666 [Vaver 2013] citing Bell, supra note 9 at para 27.

[138] Vaver 2013, supra note 137 at 665.

[139] CCHsupra note 53 at 53 citing CCH Canadian Ltd v Law Society of Upper Canada, 2002 FCA 187 (CanLII), [2002] 4 FC 213 at 150, Linden JA.

[140] CCHsupra note 53.

[141] Bell, supra note 9.

[142] Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 SCR 345. 

[143] Giuseppina D’Agostino, “The Arithmetic of Fair Dealing at the Supreme Court of Canada” (2013) Articles & Book Chapters 1600 at 198 online: <https://digitalcommons.osgoode.yorku.ca/scholarly_works/1600>.

[144] Craig 2010, supra note 126 at 229 citing Drassinower, supra note 110 at 202.

[145] Johannes Sebastian Bach (1685-1750).

[146] Copyright Actsupra note 7, s 29.

[147] Copyright Actsupra note 7, s 2.

[148] Copyright Actsupra note 7, s 2.

[149] Copyright Actsupra note 7, s 29.3.

[150] Copyright Actsupra note 7, s 29.3(2).

[151] Dan L Burk, “Algorithmic Fair Use”, 86 University of Chicago Law Review 283 (2019).

[152] See generally EMIsupra note 11.

[153] Copyright Actsupra note 7, s 29.21.

[154] Copyright Actsupra note 7, s 29.21.

[155] Craig 2011, supra note 72 at 16.

[156] Scassa, supra note 124 at 437.

[157] Scassa, supra note 124 at 436.

[158] Government of Canada, “Study of Online Consumption of Copyrighted Content: Attitudes Toward and Prevalence of Copyright Infringement in Canada” (30 March 2018) online: https://www.ic.gc.ca/eic/site/112.nsf/vwapj/07648-eng.pdf/$file/07648-eng.pdf> (finding that 32% of Canadians consume music illegally).

[159] Copyright Actsupra note 7, s 6.

[160] Francis Day & Hunter Ltd and Another v Bron and Another [1963] 2 All ER 16 (CA) [Francis Day].

[161] Copyright Actsupra note 7, ss 3(1), 27(1); King Features Syndicate Inc. v O and M Kleeman Ltd. [1941] A.C. 417 (HL).

[162] Francis Daysupra note 160 at para 27, Diplock LJ.

[163] Gondos v Hardy (1982), 64 CPR (2d) 145 (ON HC), Carruthers J.

[164] Francis Day, supra note 160 at 600.

[165] Carys J Craig & Guillaume Laroche, “Out of Tune: Why Copyright Law Needs Music Lessons” (2014). Osgoode Legal Studies Research Paper Series 26 at 53 online: <h6p://digitalcommons.osgoode.yorku.ca/olsrps/26> [Craig & Laroche] citing Francis Daysupra note 158 at 608, Willmer J citing in support Austin v Columbia Gramophone Co Ltd (1923), Macg CC (1917–1923) 398 at 409 and 415, Justice Astbury.

[166] Craig & Laroche, supra 165 at 54 citing Irina D Manta, “Reasonable Copyright” (2012) 53:4 BC L Rev 1303 at 1631.

[167] Hawkes & Son (London) Ltd v Paramount Film Service Ltd, [1934] 1 Ch 593 [Hawkes].

[168] Ibid at 609.

[169] Prestonsupra note 97.

[170] Arnstein v Porter, 154 F.2d 464, 468 (2d Cir. 1946) at 473.

[171] EMIsupra note 11 at 50.

[172] Francis Day, supra note 160 at 610.

[173] Baker v Selden, 101 US 99, 100 (1880).

[174] Designer Guild Ltd v Russell Williams (Textiles) Ltd , [2001] ECDR 10 (UK).

[175] Cinar Corporation v Robinson, 2013 SCC 73 (CanLII), [2013] 3 SCR 1168.

[176] Santiago, supra note 92 at 304 citing Hervé Platel et al, “The Structural Components of Music Perception: A Functional Anatomical Study” (1997) 120 Brain 229, 230 [Platel].

[177] Lund, supra note 55 at 94 citing Peter Pan Fabrics, Inc. v Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).

[178] Santiago, supra note 92 at 303 citing Natasha Spender, “The Neuropsychology of Music: Apropos ‘Music and the Brain’” (1978) 119 Musical Times 676 at 676; “Natasha Spender Obituary” The Guardian, (22 Oct 2010) online: <https://www.theguardian.com/theguardian/2010/oct/22/natasha-spender-obituary>; Platel, supra note 176; and Donald A Hodges, “Implications of Music and Brain Research” (2000) 87 Music Educators J 17, 19–20 (2000).

[179] Keyes, supra note 13 at 436–47.

[180] The sound of an instrument or voice.

[181] Craig & Laroche, supra note 165 citing Jamie Lund, “An Empirical Examination of the Lay Listener Test in Music Composition Copyright Infringement” (2011) 11:1 Va Sports & Ent LJ 137 at 171.

[182] Craig & Laroche, supra note 165 at 64.

[183] Craig & Laroche, supra note 165 at 65 citing Lucy Pollard-Gott, “Emergence of Thematic Concepts in Repeated Listening to Music” (1983) 15:1 Cognitive Psychology 66 at 85–92.

[184] Michael Skidmore v Led Zeppelin et al, Case No. 20-142 (S.Ct. 2020).

[185] A repeated rhythmical pattern indicative of musical style. 

[186] Williams v Bridgeport Music, Inc., No. LA CV13-06004 JAK (AGRx), 2015 U.S. Dist. LEXIS 97262, at 1–2 (C.D. Cal. July 14, 2015).

[187] Three Boys Music Corp v Bolton, 212 F.3d 477 (9th Cir. 2000) at 482–83.

[188] Santiago, supra note 92.

[189] Santiago, supra note 92; Laroche, supra note 29.

[190] 204 F. Supp. 2d 1244, 1259 (C.D. Cal. 2002).

[191] Bridgeportsupra note 92.

[192] Castanaro, supra note 158 at 1283.

[193] Arthur O’Shaughnessy, “An Ode” in Music and Moonlight: Poems and Songs (New York, NY: D. Appleton & Company: 1874) online: <https://en.wikisource.org/wiki/Ode_(O%27Shaughnessy)>.

[194] As with music, in the spirit of Ronald Barthes, this work as an unfinished communal experience, invites the reader to respond, continuing the conversation in free and dynamic zest.