Music and Copyright: How the Supreme Court Struck the Right Note in Robinson (Even if its Timing was a Little Off!)

In the recent case of Cinar Corporation v Robinson, the Supreme Court of Canada considered the scope of copyright in a children’s television show. The defendants’ show, Robinson Sucroë, was, frankly, so similar in its essential elements to that developed by plaintiff Claude Robinson that few people, if any, were surprised by the Court’s finding of infringement. More surprising was that the Court took the opportunity to make, in passing, some important and groundbreaking pronouncements about the proper approach to establishing infringement—of musical works. This aspect of the judgment, in our opinion, struck exactly the right note. Unfortunately the timing was a little off; the judgment was released only a day or two after our recent chapter, Out of Tune: Why Copyright Law Needs Music Lessons, was sent to the presses. In this post, we take the opportunity to reflect on how the Court’s statement in Robinson bears on the arguments we advanced in the chapter. We like to think that our chapter, together with the passage in Robinson, strikes a consonant—if arpeggiated—chord.

Let’s begin with the chapter, which appears in the new Irwin Law book Intellectual Property for the 21st Century: Interdisciplinary Approaches, edited by by the wonderful Courtney Doagoo, Mistrale Goudreau, Madelaine Saginur and Teresa Scassa, and available online under Creative Commons license. Although, of course, we recommend reading the full article (a portion of which was recently featured on Slaw.ca as the Thursday Thinkpiece), a summary of key ideas should be helpful here. Broadly, we take issue with the way that music is treated in copyright infringement actions, adopting the view that music’s features and compositional processes are sufficiently different from most other categories of copyrighted works so as to warrant somewhat different treatment in evaluating claims of infringement. We argue that musical culture depends on the borrowing and reworking of previous musical ideas in referential ways, such that a strict application of copyright’s substantial similarity test may well chill musical creativity, undermining copyright’s objective of encouraging the creation and dissemination of such works. We argue that the “reasonable listener” test, which uses a musical layperson’s ears as the determiner of substantial copying, is an odd way of going about determining whether a substantial portion of a musical work has been copied. Following J Michael Keyes, we point out that this little-known sibling of tort law’s “reasonable person” presents more problems for adjudication of copyright infringement than he or she solves. We argue, with the use of a musical recording, that the ear alone can be misled, and, by a showcase composition replete with instances of potential but imperceptible infringement, we challenge the assumption that effective infringement analysis best relies on the aural experience of music. On the whole, we (gently) accuse most courts of being insufficiently aware of the ways musical works differ from cookbooks and computer programs, and of approaching the analysis of infringement in music in both legally and musically unsatisfactory ways.

Amongst our proposed solutions, we recommend a greater use of musicological experts to assist the court in moving beyond the average person’s musical perception and understanding. Musicologists applying the principles of music theory―the study of the structure of music―can provide useful insights into the world of music, helping courts to separate common musical devices and standard compositional techniques from more original patterns that may merit protection.  We demonstrate how a music theoretical approach can thus assist the court in rendering a more musically just decision. In particular, such an approach can help courts to resist the mistaken assumption that every similarity recognizable to the layperson is probative of unlawful copying.

So let us now look more closely at the Court’s judgment in Robinson. After affirming (as expected) that the “perspective of a lay person in the intended audience for the works at issue is a useful one” (para 51) in determining whether a substantial part of a plaintiff’s work has been copied, the Supreme Court then nuances this view by that adding that, “[i]n some cases, it may be necessary to go beyond the perspective of a lay person in the intended audience for the work, and to call upon an expert” (ibid.). To illustrate such a scenario, the court chose this specific example:

[52] To take an example, two pieces of classical music may, to the untrained ear, sound different, perhaps because they are played on different instruments, or at different tempos. An expert musician, however, might see similarities suggesting a substantial part has been copied ― the same key signature, the same arrangement of the notes in recurring passages, or a recurrent and unusual harmonic chord. It will be for the judge to determine whether the similarities establish copying of a substantial part, to be sure. But in making that determination, the judge may need to consider not only how the work sounds to the lay person in the intended audience, but also structural similarities that only an expert can detect.

We were thrilled to see the Court endorse a strong music-theoretical approach to deciphering the language of music. The Court supposes here that analyzing harmonies advances a clearer picture of musical composition, and that most people are unable to satisfactorily pursue such analyses. While the Court’s example, like our own, speaks to the possibility of substantial similarities going unheeded by the layperson, it is at least equally true that a layperson may perceive similarities that a court, with the assistance of a musical expert, should dismiss as insubstantial or irrelevant. In short, the Court recognizes the limits of untrained ears as reasonable arbiters of substantial copying, and hints toward endorsing many of our article’s central claims about why music is special and how music theory offers useful tools to assist in the adjudication of music infringement cases. Moreover, the Court’s acknowledgement of a role for expertise in the determination of substantial similarity may reduce the risk of potential overreaching by copyright owners calling for a “holistic assessment” of similarities between works in the wake of Robinson.

It is interesting to consider how this particular example may have come about, given the rather technical musical language it features. No doubt the well-reasoned intervenor submission of Music Canada (prepared by Osgoode adjunct professors Sookman, Mason and Glover) played an important role. But it is also noteworthy that, unlike many other courts, the Supreme Court boasts uncommonly significant musical expertise on its bench. For example, prior to studying law, Justice Thomas Cromwell graduated from Queen’s University with a bachelor’s degree in music, and for many years thereafter took brief moments away from his legal career to organize summer church music seminars and organ performance competitions.[1] Justice Abella is also an experienced musician, having received a diploma in classical piano performance from the Royal Conservatory of Music in her youth. Can we assume that paragraph 52 is the voice of musical experience speaking?

However it came about, we were pleased to see the Court address the specific challenges of determining substantial copying in relation to musical works. Copyright law may still be in need of some music lessons, but it looks like the Justices of Canada’s Supreme Court have already taken a few; insofar as this important statement by the Court in Robinson is concerned, we think they struck the right note.

Dr. Carys Craig is an Associate Professor at Osgoode Hall Law School. Guillaume Laroche received his LLM from Osgoode Hall Law School in October 2012.

3 Comments
  1. This was a fascinating post to read and think about over the last 2 days! I found it really interesting the read the “Out of Tune” chapter on musical subject matter first, before reading the SCC decision in Robinson regarding dramatic subject matter. I have a lot of thoughts particularly in relation to expert evidence, but hopefully this post won’t get too long.

    Firstly, I do think that “paragraph 52 is the voice of musical experience speaking”, just as I do not think it is entirely coincidental that both Justice Cromwell and Justice Abella have musical backgrounds as a result of their past education. Indeed, I would make the same argument about the authors of this IPOsgoode post. For example, I remember Prof. Craig indicating she played the cello during her Fall 2013 lecture on musical and dramatic subject matter, and a quick Google search tells me Mr. Laroche has an M.A. in “Music Theory” and is an IP enthusiast. Though the timing may have been a little off, I think the fact that you both reached similar conclusions as the Court did before it released its decision (and sort of predicted the direction it would take) indicates that musical expertise is essential to proper interpretative analysis here…just as IP expertise is likely the reason you and the SCC both quoted the trademark litigation case of Masterpiece v Alavida for the same proposition relating to survey/expert evidence in this copyright decision.

    Unfortunately, musical knowledge and expertise is not something that comes naturally to me. During grades 7-8, I was required to play the flute in class and dreaded the experience. For class tests that involved playing certain pieces, I would often have to practice over-and-over again until I practically had all of the notes memorized in order to get a decent mark. Over the years, I tried to improve my ability to recognize “cadence” (definition: “rhythmic flow of a sequence of sounds or words”) because I practiced rhyming and rapping as a personal hobby (eg. http://www.platinumloops.com/how_to_rap_cadence_and_rhythm.shtml), but I have come to believe my problems might relate to “tone-deafness” involving a “specific learning difficulty” (what is sometimes more generally referred to as a “mental block”). Practicing through repetition as a tactic to get around my mental block has only taken me so far over the years. Indeed, when I performed at Osgoode’s Arts Night 2013, I recited a “slam poem” a capella for this reason while my friend Zain later performed his rhymes while accompanied with instrumental sound. I thought it important to explain this background before I discussed my experiences while listening to the musical recording of the specifically prepared “model composition” (http://www.iposgoode.ca/wp-content/uploads/2013/07/Out-of-Tune-Figure-1-sound.mp3)

    This is particularly relevant to the following quote (on pg. 67 of the chapter): “the lack of substantial similarity to a layperson’s ear might be a sound basis on which to *rule out* infringement on policy grounds”. I’m not sure that everyone will be as adept as Owen J was in Harrisongs at perceiving by ear the complex sequencing of musical events in time, even after a number of repeated listenings. If I was a judge, I surely wouldn’t be as adept as Owen J. However, I should note that others have argued such “mental blocks” can be overcome and that tone-deafness is correctable with training. For example, Barbara Arrowsmith Young who founded the following school in Toronto (http://en.wikipedia.org/wiki/Arrowsmith_School) was diagnosed in grade 1 with a severe mental block (consisting of several learning disabilities) that led her to read and write everything backwards, but developed cognitive exercises based on neuroplasticity research that helped her rewire her brain by stimulating the growth of neural pathways. Thus, while I still generally think the lack of substantial similarity to a layperson’s ear may be a sound basis on which to *rule out* infringement on policy grounds, I wanted to add this note of caution.

    For example, while listening to this “model composition” last night and earlier today, I can still only really hear Beethoven’s Fifth Symphony. I cannot really hear the bits from the other 3 pieces copied, even after going on Youtube to listen to “instrumental versions” of 2 of the popular quoted songs that I heard repeatedly in my youth. I tried this tactic because I generally focus on the words and lyrics when I listen to music, just as I listen to the rhymes more in hip-hop than the underlying beat created by digital sampling. If I were to tell you otherwise (ie. that I was able to identify the pieces), it would be probably be a result of either the “confirmation bias” or the “hindsight bias” referred to in the chapter (at pg. 55-56).

    However, I do not think my specific example would be a problem based on the way that the SCC applied the test in Robinson. Firstly, I am not really an “ordinary member of the intended audience”. If anything, my tone-deafness makes me more akin to the children who would have watched Robinson’s show, and it is not necessary to “shift the question to whether the copied features are apparent to [a tone-deaf person or] a five-year-old” (para 53). Furthermore, just as it was rightly recognized at the trial level, the SCC said that “[t]hese are not works that are easily amenable to a side-by-side visual [or musical] comparison conducted by a judge without the assistance of an expert” (para 54). Personally, because of my specific worry that I would be unable to accurately assess/perceive either similarity or recognisability when comparing musical works, I would always ask for the assistance of a musical expert if I was in the position of a judge here. Indeed, as also noted in the chapter, I think my biggest problem may be that my judgments of “timbral similarity affect [my] judgments of pitch-based similarity” (pg. 58 of the chapter)…since the “model composition” was played on piano instead of the original performing forces used by the 4 copied pieces. The same melody would sound very different to me when played on a trumpet, for instance.

    Nonetheless, in terms of “Merger Doctrine”, I should also note that the “concluding function” of the model composition is what stood out most to me (even during the 1st time I heard the recording). I think this is because there are only so many harmonic patterns to end various types of music…just as only 3 forms of punctuation are usually used to end a sentence (period, question mark, exclamation mark). While the example from the chapter was rock music like that of Led Zeppelin, I think the same could be said of piano compositions ending with alternating patterns of “strongly and weakly stressed beats” (pg. 60 of the chapter). Thus, if there are only a limited number of chord sequences that mark the end of a musical phrase…and even someone as tone-deaf as me can hear it the 1st time around…I think it could be easily argued that “concluding functions” would be a clear area where musical ideas and expression have merged such that the expression should not be protected…just as “the [merger] doctrine ensures that customary refrains, common chord progressions, scales, and musical metres remain in the public domain” (pg. 50 of the chapter).

    In the end, even though I may personally have trouble differentiating “common stock elements” from “highly unique patterns”…I still agree that “the recognition of similarity is an acquired skill, not a stable binary yes/no response” (pg. 65 of the chapter)…and also that the process is unidirectional. Once I heard Beethoven’s Fifth Symphony in the melody, I could not un-hear that connection. Lastly, while I acknowledge that it is more important to fully engage musical expertise in the second prong relating to the substantiality/recognisability determination…I “also agree with Lemley that a better solution would be to employ expert testimony and analytic dissection of the work in both prongs of the substantial similarity test” (pg. 69 of the chapter) for the reasons I have discussed above.

    Since this post did end up being longer than expected, I just wanted to end off today by saying that I whole-heartedly agree with Prof. Craig and Mr. Laroche about the “importance and critical value of interdisciplinary approaches to copyright scholarship”.

  2. Thanks for reading our stuff, Harjot. It appears you’ve been reading *very* closely, too, given the level of detail and citation you incorporated into what is, after all, only a response to a blog post. I certainly wasn’t expecting responses like this here!

    Even though sounds like we are all in full (and long-winded) agreement with one another here, there are a few thoughts I wanted to briefly expand/comment on from your post:

    – Yes, part of the reason Prof. Craig and I took some time to write this piece is exactly because Owen J’s approach is so rare in the jurisprudence. Canadian jurisprudence has a somewhat bizarre relationship with expert testimony, sometimes relying on it quite heavily and sometimes content to leave it as a side matter, and we felt that there was a clear case to be made for music falling into the former category. We’re glad the SCC has recently suggested it’s on board with us!

    – As for helping you hear the two pop songs in the model composition, the best advice I can give at a distance is to listen for “low” sounds throughout the composition. This takes practice, especially for someone who trained as a flautist and is thus naturally more accustomed to paying attention to high-pitched sounds. These melodies are not as obvious to hear in part because I re-use them in ways that are contrary to their original function, i.e., as guiding harmony, not as a melody. But of course, part of our point is that, whether you hear these melodies or not, there is problem with one aspect or another of the infringement analysis. I’m glad that our little thought/musical experiment led you to our intended conclusion, even if you think you missed a few melodies along the way. At least, from what I gather, you experienced the intended result from the Beethoven’s Fifth snippet; as you said, you now can’t go back to *not* hearing Beethoven’s Fifth in there anymore.

    – Putting my music theorist hat on a for a moment, yes, you are quite correct to conclude that ‘piano compositions’ end with their own types of concluding functions. I would stress though that the type of concluding function is largely unrelated to the instrument used to produce the sound, and instead much more related to the style of music. Both the piano compositions of Mozart (say, my current projet, the K310 sonata) and Radiohead (say, Pyramid Song from the album Amnesiac) feature concluding functions, but that does not mean that the concluding functions are the same just because the instrument is the same. Look to style, not instrumentation, to guide how concluding functions are structured.

    – Finally, given you can hear the chord sequences that lead to the end of a musical phrase, I’m happy to tell you that it is more than likely that you’re only figuratively tone-deaf, as opposed to literally tone deaf. Rejoice!

    Again, thanks for reading, Harjot!

  3. Hi Guillaume (I hope that’s okay instead of Mr. Laroche – felt too formal, lol),

    I’m addressing this message to you technically, but I am writing it publically as I feel the following will be useful expression that should be in the public domain. After all, I consider myself an activist.

    Firstly, thanks for giving me such a thorough and carefully-crafted response. I see that you apparently share a gift for *double-speak* that I apparently have, but am not always consciously aware of. And yes, thank for you suggesting I am “only figuratively tone-deaf, as opposed to literally tone deaf”. I have been rejoicing quite often recently, and have really appreciated the outpouring of support I have received recently from many individuals on LinkedIn (http://ca.linkedin.com/pub/harjot-atwal/7b/731/3bb)
    I only realized the final effects of this “thought experiment” tonight, and needed to quickly report it before going to bed. Firstly, and I cannot stress how important I feel this point is…the *unidirectionality of the process* feels like an important “piece of the puzzle” to me. In all truth, I cannot actually hear the “reason for the similarity” until many repeated listenings (or readings of your post, for example, Guillaume)…even as my mind appears subconsciously drawn to the similarity. This is the best way I can describe it, I think. But, it’s not just about how everything is similar, but also how it is different.

    This is why I *always* show as much ‘restraint’ as possible before acting, as I have long since noticed that my predisposition towards acting prematurely in the past has led me into trouble. However, I do not ‘consciously’ create any ‘hidden’ messages or metaphors, which I want to make clear should anyone have misunderstood me. I merely try to speak the truth, rather than mistruths.

    Indeed, as I recently took on a new position as an IPilogue Editor on this wonderful blog (which I believe is the 3rd-most popular “intellectual property” blog in Canada), I even exchanged some e-mails with the team that I ‘accidentally’ wrote in rhyme. By this, I mean that I had been listening to hip-hop music in the morning, saying the words to myself without speaking, and then just wrote writing in a “stream of consciousness” fashion. I developed this style of writing in rhyme and alliteration while writing a ‘novella’ for my undergraduate thesis at McMaster university. I feel my writing has developed this character also from my childhood and adolescent experiences with rap, hip-hop and R&B music.

    Indeed, I wanted to link to something written about me (by myself) on the “Obiter Dicta” if that is okay. However, this will be a controversial disclosure so I am submitting this comment on the assumption that it will be moderated and sent back to me if inappropriate (that is not my intention)…so, I will link to the following article: http://obiter-dicta.ca/2013/03/25/what-i-learned-this-year-at-the-wendy-babcock-drag-show/
    In this article, I mention that “To honour Wendy…for my part, I’ll spit it straight from my heart, out of my mouth and past my molars…that I’m Bi-Polar!” …however, I was wrong here, in a sense. In order to retain credibility, I must explain my mistakenness. You see, needing an interdisciplinary approach to copyright and psychology to explain this, I will link to the following psychological theory:
    –> https://books.apa.org/pubs/books/4317146.aspx
    –> “Polarities of Experience: Relatedness and Self-Definition in Personality Development, Psychopathology, and the Therapeutic Process”

    Here, I learned that the process of identity formation is related to 2 functions – (1) Self-definitions (eg. a company’s “mission statement”); (2) Interpersonal relatedness (eg. the business case for “healthy and happy employees”)…again, referring to one of my LinkedIn posts like a “chain-novel”…indeed, this basic duality is fundamental to all our natures. Think Yin/Yang, or Batman/Joker, or Harry Potter/Voldemort (these terms are meant to add contextualized meaning). This is what I recognized instead in the term “bi-polar”. Indeed, I was wrong because of “substantial similarity”, but eventually researched enough until I found the right conclusion and the differences. Instead, I think the “level of detail and citation [I] incorporated into what is, after all, only a response to a blog post” demonstrates quite clearly that I have OCD. I feel no need to hide, as long as my comment has been moderated and deemed appropriate. Indeed, I don’t want to lose my new blogging job, after all! A wise *lady*, who shined much brighter than I ever will, once told me that a certain type of job was better than no job at all.

    Since I like the humanistic “moral uplift” theme of Harry Potter, let me end my thoughts off tonight before bed (this already took me about 20-25 minutes to write) by simply saying…
    –> https://www.youtube.com/watch?v=-uM8ZfBIMdQ – Harry Potter Chamber of Secrets Inspirational Video
    –> ”It’s not our abilities [or similarities] which show what we truly are [or define us]…it is our choices.” I think that more or less also applies to the infringement analysis, lol. At least I tried 😉

    P.S. Yes, I will make sure to listen carefully for “low sounds”. Also, while I like melodies a lot, I much prefer harmonies and overall unity. I’m all about inclusiveness. Yes, I am paying attention to the style of my concluding functions. I’ll make sure to listen to those Mozart and Radiohead pieces. Last but not least…yes, “we are all in full (and long-winded) agreement with one another here”.

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