With the recent shift to online content sharing, orchestras are facing new challenges when it comes to copyright. Orchestras Canada invited James Leacock, Manager of Media in SOCAN’s licensing department (and a 19-year veteran at SOCAN) to join us for a discussion and lively Q and A.
Below are some key takeaways from the conversation:
1- Know your tariffs!
There are different types of licenses that Canadian orchestras typically use to secure live performance rights:
- Tariff 4B2 – Annual License for Orchestras, a license to publicly perform music as live performances at concerts or recitals of classical music for the period of one year. The tariff is based on a flat fee per concert, calculated on a sliding scale based on your orchestra’s budget size, and is payable on every concert you give, whether it contains copyright-protected music or not.
- Tariff 4B1 – Per Concert Classical Music License, also a license to perform music as live performances at a concert or recital of classical music. The difference? This tariff is based on EITHER 1.56% of your gross receipts OR (for a free concert) 1.56% of the fees you pay to performers, with a minimum of $35 per concert. It is only payable on concerts that contain copyright-protected music; it is not required for programs containing only public domain repertoire.
Do the math! One tariff may be more cost effective for you than the other over the course of your season: it will depend on your repertoire choices, venue capacity, and ticket prices. You cannot, however, cherry-pick: look at your entire season, or calendar year (if that’s your licensing period), and opt for the Tariff that works best for you. For 2020, the folks at Entandem may be willing to look at permitting mid-year shifts in tariffs to better accommodate your new realities: please talk to them!
2- Those tariffs cover you not only for in person performances, but also online concerts
James helpfully defined a public performance as “music performed outside a home, a car, or a boat”, and this includes music communicated to the public by telecommunication, including the internet! Rights to perform copyright-protected repertoire concerts online are treated the same way as in person concerts, and this stands for single purpose (live performance only, online only) events, and hybrid events (both live and online).
An example of this would be a concert where there are 50 people attending the concert in person, and at the same time, the concert is being live streamed. In this case, SOCAN considers this to be one event, meaning that you only need one license for hybrid concerts. Same goes if there are 50 people attending in person, and the concert is being recorded to be broadcast later: it is still considered to be one event.
Your right to perform and communicate the music is covered by your chosen SOCAN performance license.
3- Neither 4B1 nor 4B2 covers synchronization or reproduction rights.
SOCAN only handles the public performance and communications rights, but not the reproduction and synchronization rights, which you’ll need to secure from the rights holder for the repertoire you’re performing (or their representative). If you don’t know who that is, start with the music publisher: they can guide you.
If you’re looking for some quick definitions under Canadian copyright, this page on the Canadian Music Reproduction Rights Association can help you!
4- Archival recordings require a different license
If you are communicating recordings made in the past by your ensemble, you will need to secure an Online Audiovisual license ( Tariff 22.D.1 ) from SOCAN.
If revenue is generated by these performances through advertising, per-program fee, or special subscription the fee is 1.9% of these revenues subject to a minimum annual fee of $15.00. For services that generate revenue, reporting for the tariff is quarterly. If the minimum is applicable, you need only remit the form once and pay your fee for the year.
5- Facebook and YouTube have their own licensing agreements with SOCAN and other rights holders – and they enforce them!
If you are using Facebook and/or YouTube as a platform to share your recorded musical content, those platforms are responsible for policing the licenses, and can take content down. When you use these platforms, you are posting at your own risk.
However, if you are selling tickets for the viewing of this concert, or if it is being promoted or advertised as a concert/event, then your organization will need to secure a license from SOCAN.
Early pandemic experience taught groups that both Facebook and Youtube use bots as a first line of identification of material under copyright (whether it’s copyright on the repertoire or copyright on the recording). Immediate and well-informed communication with YouTube or Facebook will escalate the issue to a live person, and you can then sort things out.
6- Be mindful of copyright on arrangements
If your concert includes works from the public domain only, you’re in the clear. If you’re using the 4B2 tariff, you’re paying a flat fee per concert, whatever the repertoire. If you’re using the 4B1 tariff and only performing music in the public domain, then no license is required. However, if you are performing an arrangement of a public domain “tune”, the arrangement will be subject to copyright protection if it was created during the current copyright term in Canada (which we’ll summarize as “death plus 50”). Check to make sure, and ensure that you have a license if required.
Still have questions?