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We’ve all seen an attempt to record a concert: a shaky, grainy, barely-audible video of a band you’re supposed to recognize. You may watch with feigned excitement and think, why film this? Why not just enjoy the show?

But there’s another question surrounding recording concerts — and one that’s just as tricky to answer. Is it even legal to record and share them? Or are all of those people holding their phones breaking the law?

Music copyright in Canada

From a strictly letter-of-the-law perspective, recording and sharing a concert is illegal. Under Canadian (and common) law, the copyright owner has the sole right to the musical work. That is, only the owner can reproduce, distribute or perform the work. So by recording (thus reproducing) the performance, you could be violating the artist’s copyright.

In fact, many venues forbid cameras and recording devices inside, and artists like Prince have expressly forbiddenconcert-goers from filming their performances.

How serious is this copyright violation?

OK, let’s face it: that grainy phone footage of a concert probably isn’t worth distributing. The person who shot the video might want to look back fondly at the performance, but it’s a poor substitute for the live experience. The truth is you’re unlikely to face legal action for recording or distributing; for every artist like Prince, there are plenty that don’t care about concert recordings.

Of course, artists will likely be a little less lenient if you manage to set up professional-level audio and video recording devices. Don’t try that.

What if you share on social media?

But be careful: sharing that concert video could constitute an unauthorized distribution of a copyrighted work, and copyright infringement of music can have serious consequences.

In 2010, a group of Canadian and international music companies alleged copyright infringement against isoHunt Web Technologies Inc. isoHunt’s websites allowed users to share files of music (and films) using BitTorrent. Six years later, the British Columbia Supreme Court found that isoHunt and its founder were liable for up to $65 million.

While a concert-goer is unlikely to distribute artists’ work at the scale that isoHunt did, the case shows that copyright infringement carries serious consequences.

What if you share on social media?

Is it ever legal to record or distribute a concert?

As always, there are exceptions — Canadian copyright law is complex. The Canadian Copyright Act allows you to use copyrighted material without permission under specific conditions. This is called fair dealing. Broadly, these conditions are research, private study, education, parody, satire, criticism, review and news reporting.

So if you’re a musician studying an artist’s on-stage performance or a journalist writing a concert review, you may be allowed to film a concert without copyright infringement.

Copyright and fair dealing

And as copyright lawyer Graham Hood explains, copyright in Canada is often dealt with case-by-case. It’s not black and white if you can post a concert in Canada on social media.

In 2004, during a landmark copyright case, the Supreme Court of Canada admitted there lacked a set test for fair dealing. So the Court devised a two-step fair dealing test. The first step determines if the use meets the conditions listed earlier — research, education, criticism, etc.

The second step is more complex and involves applying six factors. Courts would examine factors like the amount of the work copied, the nature of the work itself and the economic impact of copying the work.

And so it’s possible that filming a concert could be fair dealing. People are unlikely to film the entire concert — they might film their favourite song or a memorable portion. Plus, few concert-goers will sell their video and make a profit. They likely never intended to sell their video, and it’d have little value — these recordings are a poor substitute for a live performance. In other words, these recordings are extremely unlikely to impact an artist or record label’s bottom line.

You can also record a concert if you obtain the artist’s and possibly the venue’s permission. Issues may arise when filming the audience, but there’s little expectation of privacy at a concert.

Copyright and fair dealing

A performer’s performance

Canadian copyright law has other complexities to tackle. For instance, just because an artist performs a song in the public domain, it doesn’t mean you can reproduce and distribute the performance; in Canada, a performer’s performance is subject to copyright law.

Take the famous Happy Birthday To You song. In 2015, a U.S. judge determined that the ubiquitous song was now in the public domain. However, if an artist at a concert performs Happy Birthday To You, the performance itself could be copyrighted, regardless of the original work’s copyright protection.

Post a concert in Canada Conclusion

Canadian copyright law has other complexities to tackle. For instance, just because an artist performs a song in the public domain, it doesn’t mean you can reproduce and distribute the performance; in Canada, a performer’s performance is subject to copyright law.

Take the famous Happy Birthday To You song. In 2015, a U.S. judge determinedthat the ubiquitous song was now in the public domain. However, if an artist at a concert performs Happy Birthday To You, the performance itself could be copyrighted, regardless of the original work’s copyright protection.

Post a concert in Canada Conclusion

Canada’s copyright laws are complex. But hopefully, this article has taught you about if you can share a concert in Canada online.

While pulling out your phone at a concert to film is technically illegal (and perhaps a nuisance to those around you), you’re unlikely to face legal action — primarily because these concert recordings pose little or no economic threat to artists or record labels.

And yes, mass distribution of copyrighted music can carry severe punishment, but posting a concert clip on social media is unlikely to generate legal attention.

Some recordings might also be protected by Canada’s fair dealing doctrine, especially if you only record portions for purposes like education or criticism. As long as you don’t intend to use the recording for profit, you’re probably safe. Remember, when it comes to copyright, money matters.

But there’s one sure way to know you’re in the clear: acquire the artist’s permission to record.

This is not to say, however, that you should record concerts with little care; unless you need to record the performance, it’s safer to keep your phone in your pocket and enjoy the show.

Author: Alistair Vigier runs Clearway Law, a website that allows the public to hold lawyers accountable for customer service and the quality of their work. This is done by attorney ratings.