Rights and Wrongs: The Choral Conductor’s Guide to Public Performance, Making Recordings and Copying Music

by Donald Patriquin



What every choral conductor should know about making music and the law.



This article appeared in the Fall 1998 (Vol. 18, No. 1). issue of Anacrusis. It is reprinted with the kind permission of Anacrusis and the Association of Canadian Choral Conductors.
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The purpose of this article is to provide choral conductors and their choirs with enough information to make informed decisions when it comes to the legal aspects of making music. It does not pretend to be comprehensive, but it should provide you with a better understanding of the relationship between composers, publishers and performers and guide you to other information sources.

Am I Breaking the Law?

Choral conductors should be aware of three "rights" which affect live and recorded music:


1. performance rights

2. mechanical rights, and

3. copy rights.


These three rights have a common source, the Canadian Copyright Act, which, to put it simply, establishes that someone or some organization possibly OWNS the music that you wish to perform. When you purchase a score, you then have the permission to perform it in private and to rehearse it with an ensemble, but not necessarily to perform it publicly, nor to record it, and definitely not to copy it.

The music of any living composer, or of any composer who has been dead for less than 50 years, is protected by copyright. Likewise, a published score of ANY music (except a "carbon copy" of an out-of-copyright work) which was published in the last 50 years is also protected.

Let us now look at your legal obligations with regards to each of the above-listed rights by answering some typical questions.

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Performance Rights

We give concerts. Must I report my choir’s performance? If so, to whom?

Before you present a concert anywhere, be it in a school, church, prison, auditorium or park, you should contact SOCAN (Society of Composers, Authors and Music Publishers of Canada), the organization which licenses the performance of musical works in Canada. It collects license fees for copyright music performed in concerts and in a variety of other settings, which are then distributed as royalties to composers, lyricists, songwriters and music publishers in Canada and around the world.

If you are not sure whether or not you need a license to perform, simply call one of SOCAN’s offices to determine your responsibilities and to see if any of the exemptions provided in the Copyright Act apply. The procedure to obtain a license for a choral concert is simple and straightforward. Notifying SOCAN will help you avoid later difficulties with composers and publishers who got wind that their music was performed but did not know if permission was obtained.

For information on performance rights, contact the SOCAN main office or one its regional offices.

SOCAN (Main Office)
41 Valleybrook Drive
Don Mills, ON M3B 2S6

Regional offices

Vancouver
(604) 669-5569
1-800-937-6226

Edmonton
(403) 439-9049
1-800-517-6226

Toronto
(416) 445-8700
1-800-557-6226

Montreal
(514) 844-8377
1-800-797-6226

Dartmouth
(902) 464-7000
1-800-707-6226

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Mechanical Rights

We make recordings that will be sold to the general public. Do we have to clear rights? Whom do we contact when there is copyright music being recorded?

The rights concerning the reproduction of music by mechanical means as opposed to live performance are appropriately called mechanical rights. Again, the Copyright Act comes into play and the same criteria and stipulations as those for a performance apply. Every legitimate producer of commercially available tapes, CDs and videos will require that you clear all copyrights with their owners, Canadian and otherwise.

In Canada, there are two agencies which operate in this realm: CMRRA (Canadian Musical Reproduction Rights Agency) and SODRAC (Society for Reproduction Rights of Authors, Composers and Publishers in Canada). Like SOCAN, they are concerned with both Canadian and foreign copyright. These societies collect and distribute royalties on behalf of composers and publishers for all types of music recordings. There are some differences between the two organizations, more of concern to members than to choral conductors. For example, SODRAC represents authors, composers and publishers, whereas CMRRA represents only publishers. Very often the recording company will handle the paperwork and contact the appropriate rights society for you, but the choral conductor is ultimately responsible for seeing that this is done. To find out which society to contact, simply ask the composer or contact either society, who will tell you if the composer is on its list or on the other society’s list.

CMRRA publishes an easy-to-read and informative brochure entitled Mechanical Licensing... and Other Mysteries.

CMRRA
56 Wellesley St. W., Suite 320
Toronto, ON M5S 2S3
Tel.: (416) 926-1966
FAX: (416) 926-7521

SODRAC
759 Victoria Sq., Suite 420
Montreal, QC H2Y 2J7
Tel.: (514) 845-3268
FAX: (514) 845-3401
E-mail: sodrac@login.net

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Copy Rights

Are there circumstances in which it is OK for me to photocopy music?

There is certainly growing awareness amongst musicians of the rights of the copyright owner (usually the publisher, but sometimes the composer), but there is no doubt that some curious notions linger as to what may or may not be done with regard to music copying.

Here are three relevant excerpts from the Canadian Copyright Act (consolidated version):

• The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of 50 years following the end of that calendar year.

• Subject to this Act, the author of a work shall be the first owner of the copyright therein.

• Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything that, by this Act, only the copyright owner has the right to do.



Now, try your hand at this "quiz" which may give you further insights into the application of the Copyright Act. Assess each of the following statements as True or False.



1. I am allowed to make photocopies of traditional carols from the Oxford Book of Carols.

2. I am allowed to photocopy music which I ordered for my choir, but which has not arrived in time for rehearsals.

3. I am allowed to make photocopies of a piece from a curriculum song-book for use in my music class.

4. I am allowed to print the text for Britten’s War Requiem in the program.

5. I am allowed to teach my choir The Sound of Music for its end-of-year performance from an audio tape.

6. I am allowed to make copies of an anthem by Healy Willan for church use.

7. I am allowed to copy by hand a recently discovered choral work by Debussy.

8. I am allowed to make copies of Vivaldi’s Gloria for my choir.

9. I am allowed to make a copy of Somers’ She’s Like the Swallow for my personal library.

10. I am allowed to make copies of a madrigal from an Elizabethan songbook.

11. I am allowed to photocopy a couple of tattered pages from my conductor’s score.

12. I am allowed to photocopy a couple of pages to allow for easier page-turning.

13. I am allowed to photocopy a couple of pages of Harry Somers’ She’s Like the Swallow for private study.

14. I am allowed to borrow multiple copies of a contemporary choral work from a music library and lend them to choir members.



If you marked False for the first nine statements and True for the last five, you are either very well informed about copyright or have a finely tuned sense of fairness. If you marked No. 14 False, you are possibly more fair than even the law allows for. "Fairness" is, in fact, essentially what drives copyright law. It is referred to as "fair dealing" and is an important aspect of the legal interpretation of the Act. If we can understand that something as ephemeral as music can actually "belong" to someone (usually the publisher, but often the composer), in the same way that a chocolate bar sitting on a shop counter can belong to someone, then things fall into place rather easily, and we won’t be tempted to steal it. Well, we may be tempted, but it is hoped we won’t follow through.

Much of what is implied in the above quiz flows out of the basic principle of copyright. The word itself means "the right to copy". Canadian copyright law gives the exclusive right to copy to the owner of the copy right. In the case of music, the first owner of the copyright is the composer. However, the composer may assign his right of copy (i.e. copyright) to a publisher. Copyright subsists for a period of 50 years after the composer’s death. After that period, the music is deemed to be in the public domain and may then be freely exploited. Thus, nothing by Willan can be freely photocopied...yet. (See No. 6)

In some cases, there may still be copyright in effect even if a composer has been dead for 50 years because of pothumous rights. Recently discovered works of long-dead composers bear copyright from the date of their first publication, making it illegal to copy such works in ANY (including copying by hand) way for 50 years. So, No. 7 is also False.

So that should leave you free to photocopy great works by the masters, right? No, not generally, for the actual edition probably bears copyright. A modern edition of Vivaldi’s Gloria, for example, will generally have significant editorial markings. While the bare notes in abstracto are not copyright, the physical presentation is, such as the format, possibly the translation and other contributions of the editor. (See Nos. 3 and 8) If you are going to copy the music of a long-dead composer, do it by hand or on computer. Make sure, however, that it is the original or a copy of the original or an out-of-date publication (50+ years old) which you are copying. Music which has recently been transcribed by musicologists (a new rendering of a medieval part-song, for example) may well bear an identifiable imprint of the musicologist who worked on it. Should an original Elizabethan song-book, or copy thereof, fall into your hands you would not be amiss in making copies of its contents. (See No. 10)

Copyright law is as applicable in a synagogue or classroom as it is in a public auditorium. There are other rights (e.g. performance rights) which apply differently in different venues, but not copyright law. It is as unfair, that is, illegal, to steal music for performance in a church as it is for performance in a prison or a public concert venue. (See Nos. 1 and 6)

An individual is allowed, however, to photocopy an "insignificant portion of a work" (musical or otherwise) for private study or research. This is generally taken as being less than 10% of the total work. (See Nos. and 9 and 13) This is virtually the only exception and given this, No. 2 is, unfortunately, False. Should a situation ever come to court, however, and the conductor could demonstrate that the music had in fact been ordered and that all the copies made were destroyed when the music arrived, he or she might get off with a reprimand. Technically, No. 4 is False and for the same reason. It is someone’s complete poem and was written within the last 50 years, so the copyright law applies to it as well.

With respect to Nos. 11 and 12, it would be highly unlikely that anyone would ever be charged in these cases. A law cannot foresee all possible applications, and a judgment would have to be made based on "fair use". In this case, it is probable that a judge would consider the activity within the realm of fair use as the tattered and "non-visible" music was, in fact, paid for. The photocopied adjustments merely rendered the purchased music "performable".

The Copyright Act does not apply only to written music. Music may be stored in other formats, such as tape, CD, CD-ROM, etc., and it is generally as unfair (read illegal) to teach a song from a tape as it is to pirate the scores, for this robs the copyright holder of his or her fair stake in that music. An exception is probably possible for classroom study of a work, but should there be a public performance of the "studied" music, this would be in violation of the Copyright Act. (See No. 5)

Oh yes, No. 14! In Canada, there is not a "public-lending" right. This means that a library may lend out books and scores without having to pay a royalty to the author or composer. Currently, methods of compensation are being developed to compensate creators for the resulting loss of potential income. This loophole, while not charitable to the composer, does allow ensembles to obtain repertoire at minimal cost.

Note that in Canada, a composer’s works do not have to be registered in order for them to be copyright. They bear copyright even as the ink is drying. Generally, you will see a © on the printed music, but if it is not there, it does not mean that the music is not copyright. The word copyright may not even appear, but it is!

This article is merely an introduction to copyright application, but you can be sure of the following:



You should NEVER make multiple copies of the music of:

1. ANY living composer, nor of

2. ANY composer who has been dead for less than 50 years, nor of

3. ANY score nor music book likely produced in the last 50 years.



Follow the above rule and you’ll be within the law and will be giving composers, authors and publishers the respect and support they deserve. Music copying hurts the composer, publisher and book seller and, in the final analysis, the conductor and choir members, for it drives up the price of legitimately purchased music. Money goes into the wrong pockets: copy companies thrive. You don’t snitch chocolate bars? Don’t snitch music!

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Composer and arranger Donald Patriquin is a member of the Canadian Music Centre, SOCAN, CMRRA and the Canadian League of Composers. He now makes his home in Quebec’s Eastern Townships after a long and successful teaching career at McGill University in Montreal. He welcomes readers’ comments on this topic.


Suggested Reading
Harris, Lesley Ellen. Canadian Copyright Law. 1995: McGraw-Hill. (2004 edition, available soon) An excellent book on copyright, though more from the aspect of the creator than the user. Intended for the layman, it includes the entire Consolidated Version of the Copyright Act, and is updated every two or three years

This article is intended for information purposes only. Do not rely on it for the purpose of making legal decisions without further verification with the appropriate professionals.