Last night, I went with my fiancée and her family to see Canadian legends Barenaked Ladies in concert. Near the end of their set, they launched into what I later heard called a “mashup of pop songs”: a delightful medley of everything from current pop hits, to Bohemian Rhapsody, finishing with a wild rendition of Let It Go. A performance that connected with most everyone in the audience, and was for some their favourite part of the show. By quoting from the culture around them, they created a piece that resonated deeply with the audience.

Part way through, my fiancée turned to me and said, “Stop thinking about copyright infringements.” But I wasn’t. I was thinking about how sad it is that they would never release something like that on an album.

You see, I wasn’t thinking about infringements because none were obvious. The venue where the concert took place has an up-to-date license from SOCAN, the copyright collective administering compulsory licensing for musical public performance in Canada. They could thus perform any song or derivative of a song that they wished to, because the license has already been cleared. This gives performers an avenue for free expression at their concerts without fear.

Then why might they not be able to record the piece? In Canada, there is no compulsory license for recordings of music, only for public performances. In order to record this kind of music the group would have to trace each composition they wished to honour, find the current copyright holder, and negotiate a license. A negotiation that the copyright holder is not even required to engage in. If any holder of any song cannot be found, or simply is not interested in participating, then the project dies. If they’re lucky, the songs are covered by a licensor like CMRRA, but they will have to research each individual piece to find out. If they want an International or radio release, then more research must be undertaken in each new jurisdiction, since licensing regimes are different everywhere.

Even with a major label behind them, this kind of task is quite daunting. And so, this kind of culturally-resonant art stays confined to concert performances and bootleg YouTube camera videos (which eventually get taken down, because they are infringements).

This is just one poignant example of how productive arts are often strangled by the lack of culturally-relevant works from the commons to quote, and a lack of legal structures to empower artists.