The concept of “soundtrack” includes pre-existing sound recordings, and such recordings are excluded from the definition of “sound recording” when they accompany a cinematographic work.
A pre-existing sound recording that is part of a soundtrack cannot be the subject of a tariff under Sec. 19 of the Copyright Act when the soundtrack accompanies a cinematographic work.
According to Sec. 2 of the Act, a “sound recording” is a recording consisting of sounds “but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work”. Therefore, a “soundtrack” is a “sound recording” except when it accompanies the motion picture.
The Copyright Act is not incompatible with the Rome Convention. Although the Rome Convention states that producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms, Art. 3 defines “phonogram” as “any exclusively aural fixation of sounds of a performance or of other sounds”. A soundtrack that accompanies a cinematographic work is not for “exclusively aural fixations”.
For more on this decision see the editorial by Ysolde Gendreau “Balancing the Balance” 44 IIC 623 (2013), doi:10.1007/s40319-013-0091-9.
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Decision of the Supreme Court 12 July 2012 – Case No. 34210. “Re: Sound v. Motion Picture Theatre Associations of Canada”. IIC 45, 96 (2014). https://doi.org/10.1007/s40319-013-0152-0