Copyright Law and the Church

N. B. This information was accurate at the time of posting Feb. 15, 2021

Want to stir a hornets’ nest? Bring up copyright law and the church. Our recent COVID-19 foray into worship on YouTube, Facebook, and Zoom opened a Pandora’s box of confusion about what is necessary in terms of licensing and how the law applies in the domain of worship. 

I am not a lawyer, nor an expert in copyright law. What I have done is taken time to read the Canadian Copyright Act, along with best practice documents published by our church and other North American churches. I’ve spoken with SOCAN (Society of Composers, Authors and Music Publishers of Canada). I’ve discussed and debated the moral and ethical considerations, along with practical matters of compliance, with my ministry colleagues in Music United.1 This article is intended to give an overview of copyright and worship and is aimed not only toward musicians, but also to clergy and worship committees, who should all be informed about our rights and responsibilities when we use the creative property of others in our worship. 

What is copyright? Copyright vests in the owner of any created work the sole right to produce, reproduce, perform, or publish that work or any substantial part thereof.2 There are certain limited exceptions to these rights, and in Canada, there is a very big exemption for religious institutions in Paragraph 32.3(3) of the Copyright Act. This paragraph allows churches to (inhale) have live performances in public of musical works; to play sound recordings embodying a musical work or a performance of a work; to broadcast a live performance of a musical work, or a sound recording of a work, or a sound recording embodying a work or performance of a work.3 It is vital to note that the exemption only applies to “acts in furtherance of a religious, educational or charitable object.”4 In other words, it applies principally to the activities of worship, Christian education, and the charitable work of the congregation. This means that: 

1. It does not cover any purposes except religious, educational, and charitable ones. If you want to use copyrighted music in, for example, a fundraising concert, a coffee house, or an open mic evening (where the funds stay with the church), you must obtain the permission of the copyright holder or arrange for a licence. Likewise, anyone using your facilities for an event must arrange for copyright coverage. The law makes the hosting venue responsible for this, so while you may tell your users to look after this licensing, if they fail to do so, the church (the venue) will be held accountable. For this reason, it is important to ask presenting organizations to provide proof of their SOCAN licences.  

2. It does not allow for music copying. I’ll deal with reproduction rights below.  

3. It does not cover anything except music. If you want to read a copyrighted story or poem, or show a clip from a copyrighted film, you must obtain the permission of the copyright holder, or obtain a license.5  

There has been some debate about whether these exemptions extend to the realm of digital reproduction for broadcast. Historically, the law was interpreted that it did, but recent developments cast this in doubt. Some colleagues and I suspect the recently enacted USMCA trade agreement (the new NAFTA) is changing the Canadian copyright law to look more like its American cousin. For instance, USMCA would change the duration of copyright to 70 years—the American standard—from the 50 years presently written in our law. There are other provisions of the American law that are regarded as draconian as compared to the more consumer-favourable laws under the current Canadian Copyright Act. American churches have very few protections under U.S. copyright law; notably, the U.S. law explicitly requires churches to have a streaming licence for hymns and other music content.  

I corresponded with SOCAN to seek clarification on how paragraph 32.3(3) is currently interpreted in relation to online streaming of worship content. James Leacock, manager of the Licensing Team, said, “We want you to feel confident that you’re using music legally and ethically during your virtual church events. SOCAN’s annual online audiovisual licence is only $15. If it’s a paid event, your licence is less than two percent of the amount you bring in. What’s more, your SOCAN licence covers broadcasting on most video platforms. Contact SOCAN and we’ll walk you through the process.” 

They treat social media and video upload platforms differently. Social media have their own SOCAN tariff and—just as churches are responsible for ensuring compliance on submitting royalty fees for events held in their building—social media sites are responsible for submitting royalty fees for performances uploaded on their platform. Zoom, Teams, Vimeo, Purple Platform, etc., are not “social” in that they don’t have user streams and they act more like repositories of content: you remain in sole possession of the material placed there; it is not redistributed by sharing. It’s the same if you upload a video to your own webpage. That action also incurs fees. So, if you are streaming/uploading your Sunday worship to YouTube or Facebook, you do not have to worry about violating copyright; there is no tariff to pay. If you are using Zoom, you can purchase a $15 annual blanket licence (SOCAN Tariff 22.D.1) which makes you fully copyright compliant. It goes without saying that in all instances, you must credit the creator of the work and cite the holder of the copyright, which may not be the same entity.  

Some will ask, “What are the copyright claims on YouTube all about?” And others will have stories about their stream being blocked on YouTube or Facebook. The copyright claims are evidence the system is working the way it is supposed to. There are algorithms searching YouTube and Facebook on behalf of copyright holders to identify music belonging to their clients. When they find matches to existing music, copyright holders stake a claim and the social media site pays the appropriate royalty. YouTube gives you the opportunity to remove the claimed material or dispute a claim made against your upload if you don’t believe the claim is valid. For instance, some claimants have taken public domain material, made a small adjustment to it—sufficient to say it is something original—and established a new copyright on their “creation.” There is no need to defend your copyright credentials by contesting these claims, and there is no reason to be concerned about leaving the material against which a claim has been made in your upload. You have not violated the regulations, and at most, your effort will deny a spurious claim and the payout of undeserved royalties. In the rare instance that your upload is blocked or your account frozen, you would have had to commit a blatant and serious copyright violation by reposting someone else’s copyrighted material. For instance, you may have received permission from the General Council Office to include an excerpt of a United Church–published video in your YouTube recording, but YouTube doesn’t necessarily know that fact. If they identify the video as belonging to The United Church of Canada, they will protect the copyrighted interest in that video and block your feed. Again, you can contest the claim after the fact, but it is advisable to contact YouTube in advance and register your licence for the upload in question. The same would apply if you used a recording by a popular band as the background to your creative church PSA. Chances are high that upload would be blocked. But if you have the church band record a cover of the tune, the copyright holder would undoubtedly make a royalty claim against the performance, but because it is an original performance, there would be no copyright strike, and the video would remain live on YouTube. 

And finally, a word about reproduction rights. We still hear people complain it makes no sense that we cannot reprint words for hymns in the bulletin or PowerPoint when we already own a full set of hymn books. Think about it from the content creator’s perspective: your purchase of the hymn book paid for the “reproduction rights” that generated royalties to the writer of the hymn for that copy you are holding in your hand. When you photocopy or display the text, you are making a new reproduction of the creator’s content. The creator of the content is entitled to new royalties for that reproduction. If you do this without a licence, you are subverting the content creator’s entitlement, written in the law, for compensation on the reproduction you have made. That’s how authors and composers earn a living from their creative work. The Canadian Copyright Act not only protects the creator’s moral rights, which basically means their undisputed ownership of their material; the act also gives creators the benefit of earning compensation whenever their creation is physically reproduced—every single time. OneLicence and CCLI provide the licences to accomplish this. These two collectives have begun marketing streaming licences to Canadian churches as well. Not long ago, our advice was that streaming licences for hymnody were not necessary in Canada. Now, in the USMCA reality, that is less certain, so the advice is to get the streaming licence. In all these things, you’re benefiting church music artists—composers and hymnists—through royalties flowing to support their new creative work. Make sure you report your use—Every. Single. Time! 

Wild, eh? If there is a legal expert out there working in intellectual property rights and the church, I would very much like to make your acquaintance! 

Resources 
SOCAN
OneLicense
CCLI 
United Church of Canada Copyright Guide for Congregations (2014) 

Notes 
1 Music United Copyright
2 Copyright in Canada
3 Canadian Copyright Office
4 Ibid. 
5 Canadian Copyright Act