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The Legality of Mixtapes
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PostPosted: Fri Jan 27, 2006 6:55 am    Post subject:  The Legality of Mixtapes
Subject description: DJ´s - Read this before posting
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What is a mixtape?

A mixtape is a collection of songs assembled on audiotape, compact disc (CD) or any other type of data storage medium.

Under Canadian copyright Law, a mixtape is considered a compilation. S.2(a) of the Copyright Act [the Act] defines a compilation as a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or of parts thereof.

According to the Act a musical work is any work of music or musical composition, with or without words, and includes any compilation thereof. That is, a mixtape qualifies as a musical work because it is a compilation of musical works.

What rights are there in a mixtape?

These musical works - the songs on the mixtape - contain several separate copyrights. Each song on the mixtape has been granted the following copyrights:
1. The composition right, given to the composer(s) of the work;
2. The performer's right, given to the performer of the work;
3. The sound recording right given to the producer of the work - it is the producer who has the exclusive right to reproduce the work in any material form.

These copyrights are exclusive and may belong to an individual, group or corporation.

In addition to the rights in the songs, copyright can arise from creating the mixtape itself: there can be a copyright in the compilation. Copyright in a compilation is awarded when the selection and arrangement of the works is 'original'. In order for a mixtape to be considered original in Canadian copyright law, some amount of skill and judgment must have been used in the creation of the work. This skill and judgment must be neither mechanical nor trivial.

Does that mean I have a copyright in the mixtape?

Yes and no. It all depends on what rights you have to the musical works being mixed. If the songs are copyrighted then you must have permission from the copyright holder - they must grant you a licence - to use the songs in your mix.

Under Canadian law, whomever holds the copyright in a musical work has the right to:
1. produce or reproduce the work or any substantial part thereof in any form,
2. to perform the work or any substantial part thereof in public or,
3. if the work is unpublished, to publish the work or any substantial part thereof,
This includes the sole right to authorize any of the above acts. Because these rights are often traded for financial remuneration they are called economic rights.

The Act also gives the copyright holder the exclusive right to communicate the work to the public by analog or digital telecommunication, which includes distributing it over the internet. For example, if you made a mixtape of your favourite songs and offered it for download on your website - without any licence to communicate/broadcast the song - you would be infringing on the owner of each song's copyright.

Unless you have permission to use and distribute each and every song in your compilation, you will not have a copyright in your mixtape.

What about the fact that Canadians pay a tax on blank media, specifically audiotapes and CDs?

The Private Copying Levy allows for the private copying of songs in exchange for a tax being paid on audio media. However, this copying is only for the private use of the person who is doing the copying. The private copying levy does not allow you to copy and distribute music to anyone else. You cannot sell the copy, play the copy in public or send it to anyone over the internet. Making a mix for yourself on to a tape or CD is not an infringement.

If I make the compilation for myself would I have a copyright in the mixtape?

Yes - if and only if - you have permission from each song's rights holder to copy and distribute to the public, etc. Unless you have a licence to do something other than listen to the music being compiled, your copyright would not extend beyond playing the compilation for your own private purposes.

What are the legal implications of distributing free copies of your mixtape to friends?

If you make a mixtape and do not have a licence (read: the permission) to use the songs on the mix and lend it out to friends and family, you would be infringing the copyright(s) in its songs.

What are the legal implications of selling mixtapes?

Selling a mixtape when you do not have a licence to use the songs on the compilation for commercial purposes, constitutes copyright infringement. Even offering to sell the mixtape would be infringement.

What if I am a DJ and I want to make a mixed CD so that I don't have to bring my albums to gigs?

If you are a DJ and want to compile music that you have onto a CD - so you don't have to carry around albums when you go to your next gig - you may do so under the Private Copying Levy. However, you will need the necessary licence(s) to reproduce, distribute and/or perform the music.

In order to make acquiring these licences more efficient, there are several collective societies who enter into agreements with copyright holders to grant and administer licences on their behalf. The licensing fee collected is distributed to the collective society's members on a pro-rata basis.

Canadian collective societies for copyright :

Audio-Video Licensing Agency Ltd. (AVLA): http://www.avla.ca. AVLA is a non-exclusive agent that administers licensing in Canada for the owners and holders of copyright in master audio and music video recordings. An AVLA licence covers the cost of administration and compensation to the copyright holder of the master recordings of the songs in your compilation.

Canadian Musical Reproduction Rights Agency Ltd. (CMRRA): http://www.cmrra.ca. CMRRA is the collective agency for the reproduction rights of musical works in Canada. It represents over 6,000 Canadian and U.S. publishers who own and administer approximately 75 per cent of the music recorded and performed in Canada. Licensing is done on a per-use basis. You would also need a CMRRA licence to record your compilation to an audiotape or CD the physical CD or tape containing your compilation of songs.

Society for Reproduction Rights of Authors Composers and Publishers in Canada Ltd. (SORDAC): http://www.sodrac.com. SORDAC is the collective agency for the reproduction of musical works. It represents some 4,000 Canadian songwriters and music publishers as well as the musical repertoire of popular musicians in over 65 countries.

Please contact each individual collective society to discuss your licensing needs. Be aware that all of the songs that you wish to licence may not be found in their catalogues. If this happens, you will have to contact the song's rights-holder yourself to obtain a licence to include the song in your compilation. An alternative is to purchase the song on a CD and bring that CD to your gig - however - you must first make sure that the venue you are playing at has a Society of Composer, Authors, and Music Publishers of Canada (SOCAN) licence: http://www.socan.ca. The SOCAN licence covers the public performance of most popular musical works protected by copyright.

What if I have permission of an artist to include a song in a mixtape that I want to distribute, but that song contains samples of other songs in it?

When an artist samples someone else's songs in their music, they are creating a derivative work (the remix, or new song, is derived from the song containing the sample). For the sample artist to legally use the sample and perform the remix they must have the permission - a licence - to do so. But does that permission extend to downstream remixes of the new song?

When granting permission to sample the work, original artists typically give licences only for the particular remix being created. It is rare for original artists to proactively grant downstream creators the right to reuse and/or remix the first generation sample.

This means that each generation of creators seeking to reuse/remix the sample must obtain ("clear") the right to do so - this can only be accomplished by being granted permission from the original song's rights-holders.

What if I am archiving a radio program?

Archiving a radio program that contains the musical works of others is considered to be a reproduction of the songs. Unless you have a licence to reproduce each song protected by copyright you are infringing copyright.

Even if you have obtained performance and reproduction licences to broadcast music on your radio show ( a "broadcast licence"), that does not allow you to copy the parts of your radio program containing the musical works to another format and distribute them.

You would need the permission of the rights holder or a licence to reproduce the songs in your radio program to another medium. Likely you will need a licence from the Audio-Video Licensing Agency Ltd. (AVLA), the Canadian Musical Reproduction Rights Agency Ltd. (CMRRA) and the Society for Reproduction Rights of Authors Composers and Publishers in Canada Ltd (SORDAC). To copy your radio program to CD and give it to friends you must also clear the necessary copying and distribution rights with the respective rights-holder(s). Contact each individual collective society to discuss your licensing needs.

How do Creative Commons songs fit into all of this?

Creative Commons licenced songs proactively grant the creator's permission for anyone to use their music, if they respect the terms of the licence. This means that permission has already been granted to use, copy and redistribute all the creative works in the commons, subject to any restrictions.

There are four major restrictions when using Creative Commons works:

Attribution: You must attribute the work in the manner specified by the author or licensor.

ShareAlike: If you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one.

Non-Commercial: You may not use this work for commercial purposes.

No Derivatives: You may not alter, transform, or build upon this work.

In the context of a mixtape, you may copy, distribute, display, and perform any Creative Commons licenced song in its entirety. Adding a CC-licensed song to a CD does not create a derivative work. In order to remix the song you must have the right to create a derivative work - that is, the licence terms must not contain the No Derivatives clause.

If you are planning to compile and sell a mix with Creative Commons songs, remember that you may not use any songs that have the Non-Commercial clause.

If you'd like to use a Creative Commons licensed work in a way that the licence doesn't allow you should contact the work's rights-holder(s) for permission - this could be a collective society or the creator herself.

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