How intellectual property rights in Canada help protect creators, innovators, and entrepreneurs in the music industry

Tomorrow is World Intellectual Property day and the theme this year is “IP and music: Feel the beat of IP,” which is centered around music, creativity and the role of intellectual property rights in enabling and empowering creators to monetize and safeguard the work they create.

We spoke with two Associates in our Toronto office to find out how IP can help creators, innovators and entrepreneurs in Canada. 

Why is it important for creators such as singers, songwriters and producers, to protect their Intellectual Property, particularly in the digital age?  

By securing and understanding the value of their IP rights, music industry creators can monetize their work.  IP is there to serve and benefit the creative community if the community harnesses it. Society benefits from the creators being driven and inspired to express. Expression may be out of love of the craft, without commercialization being a primary driver.  However, if a creator understands their intellectual property rights and is proactive and deliberate in protecting their rights, their creations can generate value, and at a minimum, put the creator in the proverbial driver’s seat to control the use of their work.  

Intellectual property affords a monopoly that can be licensed (or assigned) for money (e.g., lump sum, royalties, etc.) or other valuable consideration.  There has been a sea change in recent years, and the capacity of individuals to create a well-known public persona and platform, and to gain “viral” attention for their work, with little to no up-front costs, which has created a paradigm shift in the music industry and the marketing world. 

The rise of social media, particularly TikTok, has resulted in a proliferation of brand deals between major market players and independent creators, which has opened up a wealth of opportunity to individuals, including the potential to monetize their creations without first needing to secure representation by an agency or create a platform through some other avenue (for example, by gaining fame and/or notoriety through music, sports, acting, etc.).  

Further, given the nature of social media, creators often emulate or even replicate the content of others.  While in some cases this replication is welcome (for example, when the aim is to create a “viral trend”), it can stifle a creator’s ability to monetize their work and/or prevent others from using or profiting from it, especially in the music field.  

The digital landscape makes it easy for others to copy and distribute content without permission. The IP rights of creators can allow them to exercise control over how their work is used and distributed. Registration provides better protection in this respect.  Benefits arise even in cases where registration is not required for protection of an intellectual property right, such as copyright, as it often carries presumptions which are helpful to enforcement.  For example, a copyright registration in Canada creates a presumption that the work is, in fact, subject to protection under Canada’s Copyright Act, and that the registered owner is the lawful owner of the work.  Registration can help enforce rights in the digital age, where the ability to remove infringing content from online sources is often limited to an IP owner’s ability to prove ownership via a registration.     

In the case of trademarks, the validity of a given trademark and its scope of protection are tied to its ability to function as a trademark, namely, its ability to distinguish the goods and services of its owner from that of others in the marketplace.  If a trademark owner does not enforce against infringing use, this can result in a loss of distinctiveness, and the owner risks losing the asset through this dilution as the mark can no longer be said to perform the essential function of a trademark.   

Merchandise is a major source of income for some creators, particularly singers and producers.  Given the rise in digital commerce, and in particular, counterfeiters taking advantage of being able to sell through third-party platforms, protecting and enforcing trademark rights is integral to building and protecting overall commercialization potential and brand value. In the right situations, asserting copyright in logos/images and other marketing collateral owned by creators can be a helpful complement to platform enforcement.    

What new trends are you seeing in the field of music, and how are they impacting creators? For example, Artificial Intelligence, or viral / “trending” sounds on social media?  

As noted above, there has been a shift in marketing, whereby major brands may partner with independent creators to market their goods and services, as opposed to relying on more traditional marketing tactics like sponsorship of athletes, and partnerships with actors, singers, etc.  This includes short-term partnerships with independent creators who are less established, and whose platforms may be newly emerging, but who have recently gained traction as a result of a viral post. In such cases, it is important that both the brand and the creator have an intimate understanding of expectations and commitments regarding intellectual property rights, and that associated agreements clearly delineate ownership rights (including over works that are created under the agreement and existing works that are used or appear in the newly created content), IP licensing, rights clearance and liability, along with placing prohibitions on unauthorized use, or infringement of, works owned by third-parties.   

AI is the other obvious trend, and how AI is both displacing and enhancing creators and their place in society.  There has been a rise in the creation of digital applications that collect and use information, including personal information, and that create new works from user inputs and/or third-party works (such as training data or works that are available online).  Such applications have raised important questions relating to privacy and intellectual property rights. For example, can creators of an AI use works in the training of an AI without authorization of the relevant rights holder(s)? If authorization is required, should licensing mechanisms be created to prevent barriers to development of AI technology? Is a work protectable under various intellectual property laws (for example, copyright, patent, etc.) if it is created by an AI or with the assistance of an AI? If it is so protectable, who is the author of the work? The answers to many of these questions are not yet clear as courts, law makers and industry stakeholders continue to grapple with the novel and paradigm-shifting implications of AI on the IP landscape.    

Can you name some different ways that creators could look to protect their IP and ensure they benefit fairly from their work?   

Where possible, creators should seek registration of their works.  As valid registration requires that certain conditions be met, creators should also consult an intellectual property lawyer with the requisite expertise to help determine what is subject to protection, what is required for registration, whether clearance is advisable, and to delineate the most strategic and cost-effective approach to protection and enforcement.  While retaining properly qualified counsel involves an initial financial investment, it often reduces the administrative costs in the registration process by avoiding common pitfalls (which also leads to earlier registration), as well as costs associated with infringement and enforcement by facilitating early dispute resolution outside of litigation.      

Creators should retain properly qualified legal counsel to review any agreements relating to intellectual property rights, including agreements for assignment or licensing of IP rights, and brand partnership deals that involve content creation, to ensure the creator’s rights are adequately protected, and to advocate for fair compensation. This is perhaps the most important piece of advice, and if you can’t afford legal counsel, attend free educational sessions to learn about the traps of agreements (e.g., assigning rights means you are giving them away, and an exclusive license can have a similar effect, as this type of license excludes the creator from exploiting; also for whatever rights are granted, think about not only compensation, but what commitments would help ensure success flows from the rights being licensed).    

Creators should be aware of the impacts of failing to enforce their rights in the face of infringement, as delaying or avoiding enforcement may impact a creator’s ability to enforce against infringement in the future, and/or may erode the scope of IP rights in question.  

In certain scenarios, utilizing digital rights management (“DRM”) technologies can help protect digital music from unauthorized copying and distribution. This can include encryption and other measures to control access to the content. Creators can embed watermarks or metadata in their digital works to assert ownership and track usage. This can deter unauthorized use and help in identifying infringers.

For more information on IP protection strategies, reach out to a member of our Trademark and Copyright practice.