Feb 3, 2009

Telecommunication and Communication Signal in Canadian Copyright Act

Telecommunication and Communication Signal in Canadian Copyright Act

Easy124, a reader of this blog, sent me some provisions in Canadian Copyright Act, and asked me some questions on the performer's rights in that law.

Actually I am not among professionals specially in Canadian law. Last time I read the Canadian Copyright Act was two months ago when I was revising my paper on orphan Works. So to me, his questions are opportunities for my study rather than enquires for somehow expertise.

There are three questions raised by Easy. I have mentioned one of them in a former post, which is about the unauthorized fixation of a performer's performance. Here I'd like to discuss another interesting question: difference between "telecommunication" and "communication signal". The last question about the Right to Remuneration will be disscussed later.

In Section 15 (1) (a) of Canada Copyright Act, the law noted that, if a performance is not fixed, its performer has the right:

(i) to communicate it to the public by telecommunication,
(ii) to perform it in public, where it is communicated to the public by telecommunication otherwise than by communication signal, and
(iii) to fix it in any material form,

Easy's question are: What's the difference between "telecommunication" and "communication signal"? Why the copyright is hereby refined to "perform [the performance] in public, where it is communicated to the public by telecommunication otherwise than by communication signal"?

In fact, these two terms has been legally defined in Sec. 2 of the Canadian Copyright Act:

"communication signal" means radio waves transmitted through space without any artificial guide, for reception by the public;

...

"telecommunication" means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system;

Therefore, any interpretation to these two terms shall not be out of the above definitions, even if it is of a common understanding in daily life. One may find that the "communication signal" is hereby a sub-concept of "telecommunication". As to the performer's right, "communicated by telecommunication" covers any means of transmitting the performance.

In Sec. 15 (1) (a) (i), when a performance is performed NOT in public (ex. perform a song in studio), she has the right to communicate her performance "by telecommunication". That means, any communication by telecommunication must be authorized by the performer.

However, in case of public performance like a concert, which is regulated in Sec. 15 (1) (a) (ii), the performer owns merely the right to communicate her performance by telecommunication but exclude the communication signal. That means, if a Radio program or a TV station hope to broadcast a public vocal concert, it would not have to get the permission from the performer.

At the same time, the Radio program's broadcasting must comply with two premises:

(1) NOT outside of the above definition of communication signal. That means its radio waves must float in the air and can be recieved by anyone who wants get them.

(2) NOT fix the performance because this sub-section is under the Sec. 15 (1) (a), which is ONLY dealing with the performer's right when the performance is not fixed. This requires the radio program must be a live one, which is transmitted instantly and cannot be replayed. According to sub-section (iii) in Sec. 15 (1) (a), either the radio station or the recipient of the radio waves shall not fix the performance unless they get the authorization from the performer.

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