How To Earn Rights Income With Those Online Performances

By Nick Krewen

As musical performances blast over streaming and social media platforms from any number of living rooms during the quarantine, the artists who are providing comfort and distraction during this time of need should be applauded.

But despite their good intentions, life doesn’t stop and performers should be keeping in mind that numerous rights don’t take coronavirus breaks.

"Copyright laws have not been suspended," reiterates Paul Sanderson of Toronto's Sanderson Entertainment Law. "Not at all."

In other words, if you're performing your own songs or someone else's and transmitting them through a cell phone, a camera, or whatever,, permissions need to be granted or you will be held accountable.

But here's the good news: SOCAN’s Senior Legal Counsel Martin Lavallée says for the majority of cases if you log into Facebook Live, Instagram, YouTube or most other social media platforms, you're already covered.

“Most social media platforms that exist, including Facebook, are already licensed by SOCAN for performance and for (5% of) the reproduction rights (market),” states Lavallée. 

“So, if somebody is live-streaming a concert or a music event, it is first the responsibility of the platform to be licensed and pay. We do receive money from the platforms.”

However, not everyone is on board: Lavallée says there are a few exceptions in the form of Zoom, Skype and Tik-Tok - the latter of whom SOCAN is currently negotiating terms with. But the reason that Zoom and Skype haven't been on SOCAN's radar for negotiating performance and reproduction rights is that those services have been adapted beyond their original intentions by artists and performers.

“Usually they have a different goal in mind – having conferences or for one-to-one contact, something that’s used for business app and not for streaming," notes SOCAN's Lavallée.

And then there are some smaller platforms who  - caught in the sudden throes of the outbreak – simply misunderstand that they need to grab a license for synch rights.

“There is a bit of an ignoring by-accident component for sure,“ admits Veronica Syrtash, Senior Vice-President, Business Affairs and Corporate Development, which represents 95% of the reproduction royalty market..

“It’s not necessarily understood that there are different parts of copyright  that are implicated in different uses, so the streaming entity, whether it’s a live stream or a pre-recorded stream, streaming activity implicates both the performance and the reproduction rights of musical work – and we, of course, licence reproduction.”

Syrtash says CMRRA’s role as an agency is specific.

“We represent the owners of songs – musical works – so when you have a musical work there are two rights involved – there’s the performance right and the reproduction right. The performance right is typically licensed and administered by SOCAN and the reproduction right is licensed and administered by CMRRA for the song specifically.

"So, if a performer is singing a cover of a song that they don’t own, it’s the owners of that song that we would be representing and licensing on behalf of.“

At the moment, Syrtash says the CMRRA  is busy at the moment playing "catch-up."

"To be blunt, not all the platforms are licensed for this activity yet,  because this all kind of hit us very suddenly," she notes "But, there’s definitely a bit of an educational piece that has to happen now saying, 'hey, in case you didn’t realize, there’s a reproduction right implicated in this activity and we need to license you for it. It's keeping us busy.”

Paul Sanderson says that are a number of other rights to be considered when streaming or broadcasting via platforms.

“If you’re doing an original song of someone else’s, not your own, and putting it onto a video stream, that’s an audiovisual use that requires a sync license, " Sanderson explains. "If you’re using a recording, you need a master use license. If you use a recording that you don’t own, then you need both a sync and a master use license. And there are rights in the performances in the master recordings,  so there are three sets of copyrights as the bare minimum. And are there any name and likeness rights that are being utilized in this production?"

Assuming you're not covered by SOCAN or the CMRRA, Sanderson says that in Canada, applying for a license does not mean you'll necessarily receive it.

"Licensing is non-compulsory – it’s voluntary – which means that no one has to grant a license if they don’t want you to use your songs or master in whatever way that you are using it," says Sanderson.

There are exceptions - some of which are unique to Canadian copyright laws.

"'Fair dealing' under our copyright act - as opposed to the U.S. fair use - allows you to do research, private study, education, parody or satire," says Sanderson.

A user-generated mix-n-material match that results in a hybrid recording - especially if it's for non-commercial purposes - would also not be considered to be an infringement, as long as it can be proven that it doesn't have a substantial or adverse effect on the "exploitation or potential exploitation of the work in the marketplace," Sanderson confirms. "‘If someone wants to do a home-generated remix that’s non-commercial and credit the source, that’s fine, too.”'

It gets a little more complicated if you have a collaborator that may involve another publisher or label, in which case, Sanderson recommends that the performer needs to patrol the copyrighted work. 

"If you co-wrote a song or put it on another stream – and one of your collaborators on the song said they didn't want it used that way – they’d have every right – unless it was a fair dealing exemption – to say, ‘you can’t use it.’  And if you're using someone else’s work without a licence then yes, you’re potentially infringing third party copyright owner rights.“

If there's an additional silver lining to the rights issues involving platforms during this crisis, SOCAN's Martin Lavallée has found it.

"What's happening right now is that since we're all stuck at home and we're not allowed to go out and be entertained by other venues, there's a peak in the consumption of anything digital," says Lavallée. "This has increased the value of the digital market like never before."

Lavallée said this will aid in future negotiations with streaming services and platforms and help SOCAN to efficiently collect revenues on behalf of its members..

"This is where SOCAN is prepared. We are a technological company and we're able to deal with metadata and we've established protocols with all of the major platforms."

– Also worth reading: Posting Performance Recordings Online Without Violating Copyright Laws