Liner Notes in a Digital Age - Moral Rights Implications?

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As reported by AP/CP/CBC (Liner notes for the digital age), the Recording Academy (the nice folks who stage the Grammys) have announced a new initiative: called the "Give Fans the Credit" campaign, the campaign seeks to "enhance fans' discovery of new music by ensuring all music creators are credited for their work on digitally released recordings"; as the Academy's press release goes on to state,

Songwriters, non-featured performers, producers and engineers make significant contributions to recordings, but as liner notes are becoming less common, these creators rarely receive credit on digital music devices. Currently, the only credits consumers are generally able to see are the song title, album, and artist; but music fans should have access to additional information: the songwriter who composed the work, the producers and engineers who shaped the sound, and the musicians who brought the song to life.

While this is primarily a US initiative, it's worth thinking about the potential moral rights implications of the proposed changes. As I noted in an earlier article, in Canadian copyright law, the term “moral rights” is rooted in Section 14.1 of the Copyright Act and encompasses the following prerogatives: the right to the integrity of the work (which subsumes (a) the right to prevent a work from being distorted, mutilated or modified, and (b) the right to control use of a work in association with a product, service, cause or institution; in both cases, the impugned activity must prejudice the author’s honour or reputation); and the right of attribution (i.e., the right, "where reasonable in the circumstances" to be “associated with” a work as the author thereof, either under one’s own name or under a pseudonym, or to remain anonymous). It is the latter right of attribution which is of concern for the moment.

The right of attribution is qualified by the phrase "where reasonable in the circumstances" - and the precise content of what that constitutes has, because of the paucity of Canadian caselaw on the matter, never been terribly clear. The case of Dolmage v Erskine, 2003 CanLII 8350 (ON SC), one of the few Canadian cases to give extended consideration to the matter, provides a little bit of guidance. It appears that "reasonable in the circumstances" is informed by two different considerations: practical limitations imposed by physical space (for example, it would likely be impratical to list directly on the face of a CD all of the composers of all of the songs contained on the average album) and industry practices and conventions. So, for example, as David Vaver observed in his Copyright Law text (see page 161 of the 2000 edition), the fact that radio announcers almost never identify the composers (as distinct from the performers) of the songs they play is almost certainly not a violation of the moral rights of the composer(s), because, given time limitations and past practices of the radio industry, it would not be "reasonable in the circumstances" to require every composer to be mentioned for every song which was played.

But it should also be noted that those limitations are plastic - and even moreso in a digital environment where the notion of a "limitation of space" becomes somewhat fluid. It's not obviously outrageous to assert that a failure to include composer credits in the information about a song on an online music service constitutes an infringement of the moral rights of the composer - it's not clear that there's a practical restriction on doing so (do the extra letters eat up too much digital storage space?), and the apparent industry convention of not providing such credits may be about to change as a result of the Recording Academy's campaign. And because Bill C-11 (The Copyright Modernization Act) extends moral rights to certain performers (i.e., those performing on sound recordings), once the relevant provisions are proclaimed into force the universe of potential moral rights claimants who will need to be taken into account will be significantly expanded.