Adapting Opera in the Age of COVID: From “Grand Rights” to “Synchronization Licenses”

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Think of yourself as Ian Rye, CEO of Pacific Opera Victoria (POV), my hometown opera company. You’ve been planning ahead for the next season, and advance planning is very much a requirement in the opera scene. The operas have been selected— Die Walküre, Death in Venice and Don Giovanni–costumes and properties designed, lead singers lined up, subscriptions sold and advertising readied—and then COVID hits. You are initially shut down for a few weeks, so the opera Carmen that you were planning to mount is put on hold. Everyone holds their breath, waiting for the storm to pass. But it doesn’t. The 2020 season is gone, but what about the company? There are expenses to meet—staff, artists, office—and no revenue except some additional grants from government. More challenging is the fact that you have an ecosystem to maintain; the artists who want to work, not just for financial but for professional and artistic reasons. Once the bond of shared artistic creation is broken, people will drift away. As the summer of 2020 brings little relief on the COVID front, you re-imagine the offering. Let’s take it online. Let’s make the next production a film version. And that is what happened.

To keep the company together, to give everyone a common goal and purpose, and to stretch the imagination, POV decided to stage an opera, and film it. Not filming it as in a video recording of a live performance, but creating a film version of a new opera, The Garden of Alice, by Canadian composer Elizabeth Raum. You can get more information here. That sounds pretty straightforward; turn what would have been a live performance into a film. (The company’s concert series were also being filmed and put up for digital distribution.) But creating a de novo filmed opera such as “Alice” was taking things to a new level, and while there clearly would be artistic and logistical challenges in going from one genre to another, most of us would not think about some of the other less obvious challenges, such as union issues and copyright.

When it comes to performers in live theatre or opera, most of them (in Canada) are members of Canadian Actors Equity Association or (CAEA). Film actors are members of a different association, ACTRA. But when you take live actors and turn them into film actors, the same artists are represented by a different union, with different fees and distribution rights. This was a new experience for many of the artists but it was worked out fairly easily. Less simple were the copyright issues in going from live to film.

Copyright is a pretty basic concept, but the execution and implementation can be complex. The concept is straightforward; when creators (authors, artists, composers, etc) create an original work, they own it and have the right to control its sale, reproduction and distribution, subject to certain limitations such as duration and fair dealing or fair use. However, in many works there is more than one rights-holder. Think of a recording—there could be a songwriter (of the lyrics), a composer (of the music), and a performer or performers, all of whom have contributed to the creation of the work. A book could have an author and an illustrator. The overall copyright for the work could be held by a record label or book publisher, who would have acquired the rights. In such circumstances, this simplifies matters when it comes to commercialization of the work. And then there is the issue of the rights themselves, which depend on the nature of the work. Rights can be limited geographically and by means of distribution, e.g. live performance, audio visual, digital and so on. Each of these various rights is licensed separately and carries different conditions and royalties. This is where it gets complicated for an organization like Pacific Opera Victoria.

In the case of opera, the clearance of rights starts with what are called, in the trade, “grand rights”. These are the fees paid to an artist and a publisher for the right to a live performance, but only certain live performances. As explained in this report, “Untangling the Bundle: Grand Rights vs. Small Rights”, grand rights works can be put into two general categories;

“a) Works conceived to tell a story with words and music such as musicals, operas, and oratorios. Rodgers and Hammerstein’s South Pacific, Berg’s Wozzeck, and Stravinsky’s Oedipus Rex are examples, and

b) Existing or commissioned works that are used in certain extra-musical contexts, such as with choreography, stage action, or as part of a play.”

Just as an aside, “small rights” are fees collected by Performing Rights Organizations (PROs) , such as the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Inc, (BMI) in the US, the Society of Canadian Composers, Authors and Music Publishers of Canada (SOCAN) in Canada, by PRS in the UK and so on. Many of these PROs have reciprocal agreements with each other. Their function is to collect fees from music users and distribute royalties to the composers and appropriate publishers.

The definition of whether a work is covered by “grand rights” can be tricky. For example, (again citing “Untangling the Bundle”) a gala evening of arias from different operas in concert do not implicate grand rights because standalone arias and numbers can be treated as small rights, as are instrumental excerpts of operas and musicals, because there is no “dramatic performance”.  On the other hand, a full concert performance of an opera, even without costumes, dialogue, or movement, or a performance of a song or a selection of songs from an opera or musical, with the singers in costume and in character, would be a grand rights issue. Got it?  But this is an “aside” because in the case of converting live opera to a filmed version, it was not a question of “grand rights” versus “small rights” but rather yet another type of rights, “synchronization rights” (aka sync rights).

According to Songtrust’s music glossary, synch rights are “payments made to a songwriter or music publisher for permission to use a song in “sync” with visual images on a screen. More specifically, sync refers to the use of a song in television, movies, and commercials. Sync royalties are generally a one-time sum paid directly to the publisher.”

With respect to sync rights, ASCAP notes that “Often, the music is “synchronized” or recorded in timed relation with the visual images. Synchronization rights are licensed by the music publisher to the producer of the movie or program.”

For POV, venturing into the realm of sync rights was entering new territory, and they worked with a clearing house in the US (Easy Song Licensing) to get clearances for works in the concert series. In the case of The Garden of Alice, they were able to obtain all rights directly from the composer. It was a big change for a local opera company whose traditional concerns had been to perform locally and fill the house to getting licenses to distribute an audio-visual work internationally. It presented challenges, but also opportunities for new revenue streams.

In the case of The Garden of Alice, a new opera that has never been publicly performed, there is an opportunity to find distribution partners who could give it international exposure. There obviously would be a high degree of Canadian content (Cancon), which would make it attractive to Canadian broadcasters seeking to fulfill their “Cancon” obligations, but the basis of the story is well known internationally and there could be many distribution opportunities in other markets. At the very least it could be distributed directly from the POV’s website on a “Pay per View” (PPV) basis. While there is always risk with a brand new production that has not been tested with audiences, it makes eminent sense to launch the film venture with something new. Film versions of famous operas abound, and the POV would be offering nothing unique. If the foray into filmed opera is successful, future productions could be eligible for various forms of media funding from sources such as the Canadian Media Fund, a multi-million dollar fund established to promote Canadian AV production, adding to potential revenue streams from traditional operatic funding organizations.

All this demonstrates the need for adaptability and flexibility when it comes to producing the arts. The POV’s film venture has been a creative way to keep the company operating despite the challenges of having no live audiences (and no revenue) during the pandemic. There are many challenges to mounting a successful opera season—selecting the right program, lining up key performers and musicians, creating costumes, building sets. Added to these are the pandemic challenges arising from pivoting to a new genre and producing a new product, among them navigating the rules of copyright. But the company has risen to the task.

As Ian Rye says, “It’s been a learning experience but an exciting one. It is a bit early to say how successful our film experiment will be but it’s become a common goal around which the whole company has come together”.

I am sure that it will be a success and hope to see The Garden of Alice one day in the near future from the comfort of my living room.

© Hugh Stephens 2021. All Rights Reserved

Appeal Against Canada’s First Successful Pirate Site-Blocking Order is Dismissed: Good News for Copyright Protection in Canada

In a unanimous decision, on May 26 Canada’s Federal Court of Appeal (FCA) dismissed the appeal by internet service provider (ISP), Teksavvy, against Canada’s first site blocking order for copyright infringement issued in November 2019. At the time, I commented that the site blocking order marked a significant step forward for the protection of copyrighted content in Canada, even though it was attacked by critics who claimed that it would lead to “internet censorship”, violated net neutrality and was a usurpation by the courts of the role of Parliament. Those criticisms were unfounded then and they are unfounded now, as the Appeal Court has ruled. The decision confirms that blocking orders are available in Canada to combat pirate content providers who camp in cyberspace while targeting Canadian consumers, and it confirms that Canada has joined the more than 40 countries that use site-blocking to fight online piracy and protect legitimate content distributors.

The case was initiated by Bell Media, Rogers Media and Groupe TVA in 2019 against GoldTV, an offshore pirate website illegally distributing content licensed for the Canadian market by the three companies. GoldTV failed to respect repeated injunctions and failed to appear in court to defend itself, which is not surprising given the offshore pirate business model it follows. (It sells subscriptions to its unlicensed content through providing apps that modify a digital box purchased by consumers, all at a fraction of the cost of legitimate subscription services). Bell, Rogers and TVA secured a court order requiring ISPs in Canada, including internet services owned by themselves, to block GoldTV. No ISPs, except Teksavvy, a small internet reseller, objected to the order.

Why did Teksavvy resist the order by launching an appeal? According to an interview with its VP of regulatory affairs posted on its website, Teksavvy’s position is that it is “not defending piracy, but rather the broader principle of an open internet against a creeping regime working in favour of very narrow commercial interests.” And what would those “narrow commercial interests” be? Well, apparently they are represented by larger ISPs and integrated media and telecom companies like Rogers, Bell and TVA that not only pay to license and distribute content, but also build the backbone internet infrastructure on which internet access resellers like Teksavvy depend. As you can surmise, there is no love lost between Teksavvy and the majors.

Teksavvy is a “reseller”, a company that offers internet service to consumers but does not own the last mile. It must obtain, for a fee, access to the home from the major telcos who have built and who own the infrastructure. The telcos are required by the regulator, the Canadian Radio-television and Telecommunications Commission (CRTC) to offer access to the resellers at wholesale rates set by the Commission. This is done to encourage competition. The real issue is the rate structure. If too high, the resellers won’t be able to compete at the retail level; if too low, they will undercut the telcos who will say they can’t earn a sufficient return on investment to continue to build out and upgrade their infrastructure. Teksavvy is not the only reseller in this position, just one of the more vocal ones, and has consistently been a thorn in the side of the major telcos. Coincidentally–and unrelated to the FCA’s decision–just days after the Appeal Court’s ruling, the CRTC announced a revised rate structure that largely favours the telcos, increasing the wholesale rate for access. In response, Teksavvy called for the resignation of the Chair of the Commission and announced that it would withdraw its application to provide mobile services.

Was animus toward the telcos one of the reasons for Teksavvy leading the charge against a site blocking process that was widely accepted by the industry? It is hard to say with precision what their motives are but in an earlier blog (Canada’s First Site Blocking Order: What is Driving the Objectors?)  I examined both Teksavvy’s motivations and those of intervenors appearing in support of its appeal (the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa and the Canadian Internet Registration Authority (CIRA), also associated with the University of Ottawa’s law faculty). I noted that;

“Although Teksavvy claims it is fighting for internet freedom and not to defend piracy (David vs. Goliath and all that), it is pretty clear that this is all about competing with the large ISPs…If Teksavvy is permitted to continue providing access to pirated content to its subscribers while its major competitors are either constrained from doing so, or willingly agree not to, this gives “David” a competitive advantage when it comes to finding and keeping customers, especially those whose proclivities tend to consumption of content they haven’t paid for”.

As for the intervenors, they fell into two groups, (1) those supporting the site blocking order (Fédération Internationale des Associations de Producteurs de Films–FIAPF; the Canadian Music Publishers Association, International Confederation of Music Publishers, Music Canada and International Federation of the Phonographic Industry (IFPI); the International Publishers Association, International Association of Scientific, Technical and Medical Publishers, American Association of Publishers, The Publishers Association Limited, Canadian Publishers’ Council, Association of Canadian Publishers, The Football Association Premier League Limited and Dazn Limited, a sports streaming service), and (2) those opposed (CIPPIC, CIRA and the British Columbia Civil Liberties Association–BCCLA). The court grouped them into three categories, the supporters of the order, CIPPIC and CIRA and finally, the BCCLA.  This somewhat unusual procedure was taken to expedite the filing of evidence and to hasten the court process.

Those opposing the order—Teksavvy, CIPPIC, CIRA and BCCLA– put forward a number of arguments; viz. site blocking is not mentioned in the Copyright Act and therefore the court has no jurisdiction; the CRTC has jurisdiction (this, despite the fact that the CRTC concluded that it did not have jurisdiction to establish site blocking as a result of the FairPlay Canada application to create an administrative agency to manage a site blocking regime); site blocking is inconsistent with net neutrality and, finally; that site blocking interferes with freedom of expression as enshrined in the Charter of Rights and Freedoms. The Appeal Court examined and ultimately dismissed all these arguments. For a detailed examination of the case, see prominent copyright lawyer Barry Sookman’s blog posting “Blocking orders available in Canada rules Court of Appeal in GoldTV case”.

Will this be the end of it? Teksavvy could of course try to appeal to the Supreme Court of Canada (SCC), but there is no guarantee the SCC would grant leave to hear the case. One can never pre-judge what the Supreme Court justices may decide in terms of what to add to their docket, but the FCA’s decision was both clear-cut and unanimous, suggesting little grounds for appeal. For now, the GoldTV order remains in place and the way has been cleared for further similar orders. Thus Canada is well on its way to joining the large number of countries that have already instituted blocking of copyright infringing content either through the courts, legislation or an administrative process. The Philippines is but the most recent country to move to implement site blocking as a means to protect legitimate content industries and artists.

An obvious exception is the United States, where an initiative in 2011 to bring in a measured site blocking approach through legislation, known as the Stop Online Piracy Act (SOPA) was torpedoed by a coalition of internet platforms and associations, led by Google, Wikipedia and the Electronic Frontier Foundation, among others. A campaign of fear-mongering and misinformation led to the withdrawal of the legislation, and the concept of site blocking has remained toxic in the US ever since, notwithstanding its successful introduction in a number of other democracies that are just as concerned with personal freedoms as the US, with the United Kingdom, Australia and now Canada being good examples.

While the courts in Canada have tackled the problem in the absence of specific legislation governing site blocking (as they did in the UK), arguing that a copyright owner is “entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right”, other countries such as Australia have passed legislation (enacted in 2015, amended in 2018) to address the issue. Australia has been one of the more successful regimes to curtail widespread online offshore piracy.  Canada is also considering legislation.

As part of the process for updating the legal regime for protection of copyrighted content in the digital environment, a consultation paper “A Modern Copyright Framework for Online Intermediaries” has recently been released by the Department of Innovation, Science and Economic Development (ISED). ISED is the department of government in Canada that has statutory authority for the Copyright Act. The paper posits a wide range of options for dealing with online copyright infringement and the role of intermediaries, with public comments sought by May 31. One of the options is to establish a statutory basis for site-blocking in cases of copyright infringement, subject to a number of conditions such as prima facie infringement, prior notice, technical feasibility, irreparable harm, effectiveness, complexity and cost, and safeguards. The paper cautiously notes that “establishing such a remedy in legislation could be warranted” given that there is already a legal basis for such orders, i.e. the GoldTV case. It thus appears that the Federal Court’s decision has helped move the bureaucratic process forward in terms of potential legislation, although one has to wonder if legislation is really necessary now that the courts have already dealt with the issue on the basis of existing law.

Any legislative solution will be a slow process given the input from across the spectrum of stakeholders, with a number no doubt opposed to any form of site blocking based on the usual exaggerated objections related to net neutrality and online freedom of expression. The result may be gridlock with proponents and objectors engaged in extensive lobbying of a Parliament where the government is in a minority situation and has a number of other difficult content and technology issues on its plate. It is therefore all the more welcome that the FCA has upheld the initial site blocking order of the Federal Court and confirmed that site blocking orders are available in Canada as a form of relief against offshore pirate websites.

© Hugh Stephens 2021. All Rights Reserved.