Canada: Copyright Act Reform Proposed for Public Domain Musical Works

Just as a musical score is not the same as the composition it represents, a copyright claim over an editorial edition is not the same as a claim over the underlying work. Yet Canada’s Copyright Act draws little distinction between the two, leaving the legal status of modern editorial editions of public domain musical works unresolved. This article proposes targeted clarifications to Canada’s Copyright Act to resolve this legal uncertainty. The classical music publishing industry relies heavily on modern scores, ranging from scholarly critical editions to interpretive performing versions whose underlying compositions have long since entered the public domain. While these editions involve substantial labour, their legal status under Canadian law remains ambiguous because the Copyright Act does not distinguish between an original musical work and a new score derived from a public domain composition. To address this gap, the article proceeds as follows. Part I outlines the classical music publishing industry, distinguishing primary sources, scholarly or critical editions, and interpretive editions. Part II examines the Canadian Copyright Act and the originality standards from CCH Canadian Ltd. v. Law Society of Upper Canada and Théberge v. Galerie d’Art du Petit Champlain inc ., revealing the absence of guidance on editorial editions. Part III analyses the problem of thin copyright, showing how scholarly fidelity conflicts with originality requirements and creates commercial incentives to add, rather than remove, editorial material. Part IV draws on comparative perspectives – the UK’s “aural realization” standard, the US ’modicum of creativity” test, and the EU Digital Single Market Directive – to identify lessons for Canadian reform. Part V proposes three legislative amendments to the current copyright framework: a definition of “editorial edition,” a distinction between musical “works” and “scores,” a higher originality standard requiring the editor’s own intellectual creation, and a safe harbour for faithful reproductions. The article will then conclude by summarizing the argument and reaffirming the need for statutory clarity to protect the public domain. The classical music publishing industry operates by producing and distributing written musical scores for use by performers, educators, scholars, and students. A significant portion of the repertoire performed and studied today was composed by musicians who died centuries ago, meaning the underlying compositions have long since entered the public domain. Despite the public domain status of the musical works themselves, the scores through which these works are accessed are almost invariably the product of modern editorial labour and are distributed commercially by specialized music publishers. A musical score, as defined in a specialized context, refers to a manuscript or printed form of music where staves are linked by bar-lines to provide a visual representation of musical coordination. The scores produced by these publishers fall into several distinct categories, each reflecting a different editorial approach and purpose. At the foundational level are primary sources, which consist of versions of a score in which the composer was closely involved. An unpublished, usually handwritten score is classified as a manuscript; if it is in the composer’s own hand, it is specifically termed an autograph or holograph. 1 Handwritten copies prepared by relatives, students, or professional copyists serve as critical secondary evidence of the work’s compositional history. 2 Commercial printings are categorized as first editions when published in consultation with the composer, or as early editions if printed during the composer’s lifetime. 3 To facilitate research while avoiding the physical degradation of fragile archival documents, publishers often produce facsimiles,