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II. RIGHTS
It is established that, in deciding whether a performance is “in public”, the character of the
audience is the decisive factor. The authorities relied on by the defendants were cases in which
the court had to decide whether a performance was properly called “public” when given to an
audience which had certain features pointing to the performance being public and other features
pointing to the performance being private: for example, performances given to members of clubs
and performances given by employers to employees. In such cases, there is a relationship
between the giver of the performance and the audience, which raises the possibility of the
performance being treated as being in private, and the court has to decide whether the public or
private features are to prevail. ...
In my judgment, a performance given to an audience consisting of the persons present in a shop
which the public at large are permitted, and indeed encouraged, to enter without payment or
invitation with a view to increasing the shop owner’s profit can only properly be described as a
performance in public. ...
I receive some support for this view from the decisions ... in which music played in a hotel was
held to be in public, and ...in which performances audible in a restaurant were treated as being
“in public”...
[It is] for the owner of the performing rights to decide whether or not ... to charge a fee for
performances to possible purchasers of records, and that right is invaded by the defendant
company’s conduct.
- The public performance right is distinct from the reproduction
right or any other right. A person who is entitled to perform a
work in public is not automatically entitled to record the
performance
Bishop v. Stevens [1990] 2 S.C.R. 467 (Canada: Supreme Court)
[The plaintiff owned copyright in a musical work. The defendant television
station, which was licensed to broadcast the work, first made a tape recording
of a copy of the work, which it then broadcast. The plaintiff sued for copyright
infringement, saying that the plaintiff’s right to broadcast did not give it the right
to record the work. The Court agreed with the plaintiff and awarded damages.]
JUSTICE McLACHLIN for the Court:
The right to perform (including radio broadcast), and the right to make a recording, are
separately enumerated [and] are distinct rights in theory and in practice, as is evident from a
description of the licensing system by which musicians obtain payment for use of their works:
Two main assignments occur. Both are a significant step towards earning income
from transferring copyright. One is the assignment of the performing right to a
performing rights society. The terms of the assignment are technically negotiable.
However, [SOCAN, the Canadian musical performing right society, has] standard
forms for assigning performing rights which are seldom amended. The second
assignment is of the remainder of the copyright, that is, all copyright except the
performing right, which was previously assigned to the performing rights society, to
a music publisher. Upon assignment, the publisher becomes the owner of the
copyright, and usually through its agent reproduction rights agency, licenses specific
copyright uses thereby generating income. This is a skeletal outline of the voluntary
aspect of the transfer system in relation to the music business. ...
