BMAC MemberMUSIC "BIZ" Article # 17
“Public Domain” vs “Copyrighted Works"
By Gary Hubbard , CPA,CGA

“Happy Birthday to You…….”

Hurrah! We can now (possibly) sing this without copyright infringement???

A lot of press lately regarding a US judge’s ruling that this song should be in the public domain, although it can still be appealed by Warner/Chappell Music Inc., which claims it owns the copyright.
A copy of a 1927 book found by filmmakers who are disputing the origins of the Happy Birthday song has been called a ‘smoking gun’ in the case.
Although singing this by well-wishers & party-goers celebrating a loved one at a birthday party are probably OK, performance for profit may still be subject to copyright (pending resolution of the above) and Canadian copyright is “remarkably complex”

For the most part, artists retain the right to publish, reproduce and perform their work for their lifetime.
They can pass on copyright to their estate or another person after they die. In Canada, that person then holds the copyright for the rest of the calendar year after the artist's death and another 50 years. After that time passes, the work enters the public domain and is free from copyright restrictions. This time frame after death may often vary by country. (eg. +70 years in USA and United Kingdom)
(Some musical works, like sound recordings, are subject to slightly different time frames.)

The rules are contained in Canada's Copyright Act. It's also filled with exceptions, and then exceptions to those exceptions, making copyright infringement something that is often determined on "a case-by-case basis."

A web-site has been developed to help us determine whether a song is in the public domain (http://www.pdinfo.com/)

The main point here is that ‘performers’ need to be very careful when assuming a song is in the public domain or using other people’s songs rather than songs they have written themselves. SOCAN (http://www.socan.ca/) collects ‘performance’ royalties on copyrighted works in accordance with tariffs set down by the Copyright Board of Canada. (http://www.cb-cda.gc.ca/tariffs-tarifs/index-e.html) Also, any songs still in copyright require a license for recording for usage on a CD or digital download. These are licensed in Canada by CMRRA. (http://www.cmrra.ca/)

Portions of this article are excerpted from CBC News/Arts & Entertainment – Sept 24, 2015
http://www.cbc.ca/news/arts/canadian-copyright-law-remarkably-complex-1.3240158

Gary Hubbard, CPA, CGA
Gary writes a regular “Music Biz”
column for BMAC – drawing on
his extensive background in the
Canadian Music Industry.