The Supreme Court of Canada has been prolific on
copyright issues in recent times – with mixed results for
rights-holders and for content users.
Of particular interest is the Court's approach to
the fair dealing defences and to technological issues surrounding
the use of musical works.
Commercial music selling websites will often permit users to
preview a snippet of a musical work in order to decide whether to
purchase it. The question before the Court was whether this was
covered by the "fair dealing" defence allowing people to
use a copyright work for research or private study.
The Court set a low threshold and concluded that the use of
previews by a consumer for the non-creative purpose of
investigating and identifying works for purchase could constitute
It also concluded that the dealing was "fair" because
the limited length and degraded quality of the previews would
ensure that they were only used for research purposes and that they
would aid the legitimate dissemination of the genuine work and so
would not negatively affect the copyright holders'
In a companion case on a similar issue the Court looked at the
fairness of research copying for education and concluded that the
appropriate perspective to apply is that of the consumer and not
the copier of the work.
Accordingly, a teacher who photocopied extracts from textbooks
for a class, even without any request to do so, would come within
the fair dealing exception. The Court considered that the purpose
of the teacher in making the copies could not be severed from the
students' study. It would be so severed, however, where the
copying had a commercial purpose.
The Court's view on this issue is different from influential
New Zealand High Court authority on the subject and may see the
issue revisited here.
Musical works on the internet
When you download music off the internet are you reproducing it?
Or communicating it? Why would you care? Because it may be relevant
to the royalties that you are required to pay under a licence
The Court concluded that a download of a musical work over the
internet is a reproduction of the work, rather than a
communication, and that, for these purposes, the internet is a
"technological taxi" – a mode of delivering a
durable copy of the work to the ultimate user.
A communication, by contrast, is linked to the performance right
which is impermanent in nature.
Interestingly, the Court noted that repeated point to point
transmissions of the same work to multiple different recipients
will constitute a communication to the public. That may be an
observation of interest and relevance to providers of file sharing
Chapman Tripp comment
There is something for everyone in the Supreme Court of
Canada's findings, however right-holders are probably not
overly enthusiastic about the lower threshold for the research
Given there is talk of New Zealand's fair dealing defences
being reviewed and re-tooled at some point, it is likely that these
Canadian developments will wield some influence. In the meantime,
those previewing musical purchases on iTunes can honestly tell
their parents that they are conducting research.
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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