IP Intensive: From Tariffs to Bouncy Castles—A Semester at SOCAN

As part of IP Osgoode’s Intellectual Property Law and Technology Intensive Program, students are asked to reflect, then write on their placement experience. All I could think was how perfect my placement at the Society of Composers, Authors and Music Publishers (SOCAN) was, as a musician and SOCAN member, and law student fascinated by infringement.

I love talking about infringement. I subscribe to the adage “good artists borrow; great artists steal”. So, I’m personally invested in the intellectual property (IP) infringement cases which concern the intangible thievery the law welcomes—innocent, lawful, and genius—and that it seeks to discourage—deliberate, unlawful, and mediocre. To me, infringement cases implicitly describe our culture’s ideas about talented artists, strong corporate branding, and inventiveness.

But infringement is not just about comparing two IP creations’ differences and similarities. IP law—copyright especially—is equally concerned with uses of protected creations that can encroach on owners’ scope of rights. And as we dive headfirst into cyberspace, we develop new ways to consume, share, and create, in turn raising novel use-based infringement issues. Interning at SOCAN—a frequent party in the most unique of these Canadian copyright law disputes—provided the ideal placement to fuel my passion.

SOCAN is a Canadian copyright collective management organization (CMO). They represent the Canadian performing rights of their membership—millions of music creators and publishers—and collect royalties and enforce copyright on their behalf. The CMO web can seem complex, but at its simplest: A, a business, wants to use B, C, & D’s music. SOCAN represents B-D’s music performing rights. So A gets a SOCAN license, pays the relevant fees. Then, SOCAN distributes fairly that which they collect to B-D.

Simple, right? Not so fast.

First, complications arise generally for CMOs as a result of copyright’s fragmentation. One song may have two potential groups of ownership: those owning the “musical work”, and those owning its “sound recording” and/or its “performer’s performance”. Each of these owners is also granted a bundle of rights, including reproduction and public performance rights, for works they own.

More complexity abounds as each bundle is broken down by use. This occurs as each new copyright board tariff is certified, and includes uses like public performance by live music, background music, or karaoke.

The fragmentation complexity becomes manifest when time comes to distribute millions of works for millions of uses at business across Canada. Oh, did I mention that many works have more than one author, many authors have licensed some or all of their rights, and those rights may be held by a combination of different parties living in different territories across Canada?

If this was not enough to fend with, many businesses do not want to be licensed and remunerate artists for their music use, and they opt not to. Also, some businesses argue that they should not have to pay license fees. Typical arguments posit: a use constitutes fair dealing; a use was already paid under a different tariff (for a different use); or, no current certified tariff even contemplates that particular use (as a hypothetical example, do any tariffs cover thirty-second ringtones programmed to play when an intergalactic spaceship’s pod bay doors open?)

I expected I would spend most of my time researching such novel questions of music use or working in litigation files. And, I did engage with some of the former and quite a bit of the latter, giving me ample opportunity to hone my legal research and drafting skills. But I also had the chance to investigate and advise on an overwhelmingly broad scope of in-house legal matters: privacy, data retention, and anti-spam law; contract drafting and policy review; competition and American bankruptcy law; and for one glorious brief afternoon, the growing and fascinating field of “bouncy castle law”.

I was constantly impressed by both SOCAN’s exceptional workplace environment (featuring frequent lunchtime music performance sessions by SOCAN-member artists like Dean Brody and Kevin Parent), and its emphasis on building positive and collaborative relationships with its members and licensees alike.

I want to thank my supervisors and the entire legal department at SOCAN for the best ten weeks of my law school experience. I doubt I could have been placed among a more welcoming, helpful, supportive, and patient team. I leave significantly more confident in my practical legal knowhow than when I arrived, and I owe that to SOCAN and the IP intensive program.

Jordan Fine is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.