Gaining Insight into Canadian Music Week: An interview with Susan H. Abramovitch

Susan Abramovitch, a partner at Gowling Lafleur Henderson LLP and the Head of the firm’s Entertainment Law Practice, will be speaking on two panels this Saturday at Canadian Music Week (CMW) to discuss Canada’s copyright regime and recent developments in Canadian music law and business, and their impact on the Canadian music industry. IP Osgoode had the chance to talk with Ms. Abramovitch about what she will be discussing, her views on the importance of CMW and how the legal landscape for the music industry has changed since she first started practising in Canada.

1. You’ve been asked to speak at Canadian Music Week this year. Could you give us a sneak peek of what you are going to talk about?

I will be speaking on two panels this year. One of the panels, titled “Keeping Your Intellectual Property ‘Sharp’ – A Discussion on Copyrights in North America,” will be moderated by Rich Bengloff of A2IM (American Association of Independent Music) and is designed to bring together US and Canadian government representatives, lawyers and music industry players to compare and contrast the legal environment as well as business developments in each country applicable to the music industry. The first part of this panel will be geared towards addressing recent industry developments in the recording and music publishing industries in Canada and the US.  Personally, I will tackle Canada’s music publishing industry and, more specifically, the recent copyright pentalogy that was decided by the Supreme Court of Canada a few years ago and its impact on royalty rates applicable to downloads and streams of music.  The second part of this panel will focus on a compare and contrast of the United States’ and Canada’s copyright law regimes, including recent developments in each.  We will cover differences between the two regimes, including their respective approaches to fair dealing/fair use, availability of neighbouring rights, ISP notice and notice versus notice and takedown regimes and other contrasting points. Again, I will be tackling the Canadian side of this discussion and Richard Steffens, Minister Counselor of Commercial Affairs at the US Department of Commerce will discuss the American perspective.

The second panel, titled “Licensing of Music – From BC to AD (Before the Change/ After Digital)” will be presented by the International Association of Entertainment Lawyers (IAEL), of which I am a proud member, and moderated by its President, Jeff Liebenson. This will also compare the American and the Canadian approaches; however, the discussion will be more focused on trends in new income streams and business models given recent changes in the music industry. My job on this panel is to update the audience on legal developments in the Canadian music law scene, the copyright pentalogy, and further reforms such as the recent Robinson case decided by the Supreme Court – if I can get to it in the short time allotted! This panel is mainly populated with US-based lawyers so I will be holding down the fort for Canada.

2. Why do you think Canadian Music Week is important for Canadians? What can Canadian artists and individuals learn from this event? 

Considering that CMW addresses a wide range of areas, there are numerous benefits to having this event. Some obvious benefits include the awards, educative panels, music festivals and networking opportunities, both formal and informal.

Sure, the week is helpful because it discusses the nuts and bolts of the music industry and the current events related to the industry, both in Canada and internationally. However, I find that the real benefit comes from the opportunity it affords to step back and consider the big picture.

Finally, there is a real benefit to the networking opportunities at these events. CMW not only attracts experts from within Canada, but internationally as well. Many of the industry folk I talk to from around the world seem to know of and respect CMW. This international exposure has the benefit of attracting international experts to speak at CMW conferences and panels, and consequently creates a great networking opportunity for event attendees.

3. You’ve had a fantastic career in the entertainment law industry in such a short period of time. How do you think the music industry and its legal landscape have changed since you first began practising entertainment law in Canada?

The legal landscape has changed tremendously since I first started practising entertainment law in Canada. I had the benefit of starting my music law career at the beginning of the latest technological revolution in the mid-1990s so I witnessed the early stages of the transition from physical to digital output of music. At that time, the music industry was likely at its height in terms of record sales so I was really able to see everything unfold. For example, there was the emergence of Napster and the consequential business model changes to address the issue of illegal downloading. From a legal perspective it has truly been a fascinating industry in which to practice. Since then, there have certainly been ups and downs in addressing the difficult legal issues that have presented themselves due to changes in technology and, generally speaking, the music industry is confronting a different economy now that it was in the 90s. As far as the work for lawyers, however, it seems that the demand has stayed fairly consistent.

Other than the obvious changes to the business models, there have been major differences in how people work in the music industry. It used to be that people would work in silos according to their areas of expertise; for example, you were either a music lawyer, or a tv lawyer, or a film financing lawyer or a fine arts lawyer.  The niche aspect of the silos made you even more valuable to your clients seeking that particular expertise. Nowadays, all these different areas of the industry have started to collapse into new and mixed-silo business models and so if you work in a silo you are actually doing your client a disservice. For example, there is now a tendency to focus on the brand of the artist, as opposed to their music alone, which can result in the need to deal in all kinds of rights, including name and likeness, music publishing, recording, merchandising, live performance and other rights.

4. Similarly, what do you think are the biggest issues facing Canada’s music industry today?

In my opinion, there are three main issues facing Canada’s music industry today. The first is ensuring that artists are compensated for their music so that the music industry doesn’t turn into the realm of  a mere hobby. The second issue is finding a way to cause consumers to appreciate the value of music while the industry satisfies consumer demand for wide and easy access to music. Finally, we need to protect and enforce copyright in today’s digital age where infringers can easily hide behind their ISPs in cyberspace, while balancing that with the need to protect privacy in appropriate circumstances. Legislative reform has recently finally proven to be one practical way to tackle these issues, but the developments of new ways of doing business in this industry must go hand-in-hand with that to make it really work.

Susan H. Abramovitch is the Head of Gowlings’ Entertainment Law Practice. Her practice covers all aspects of transactions and disputes in the music, film, television, live theatre, multimedia, videogaming, branded entertainment and book publishing industries. Susan received her L.L.B. and B.C.L from McGill Law School (’91) and has since then been called to the Bar in Ontario (’96), New York (’94), and Quebec (’92).