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As we've discussed in a number of recent blog posts, the
Supreme Court of Canada this week released a number of major
copyright-related decisions. In one of these cases, Society of Composers, Authors and Music Publishers
of Canada v. Bell Canada (SOCAN), the Supreme Court considered
whether there would be a tariff for the communication of previews
of musical works over the internet.
Online music previews are short extracts of musical works and
assist a consumer in deciding musical purchases. The Copyright
Board concluded that those who make previews available, and the
users that listen to previews, were entitled to avail themselves of
the fair dealing exception under section 29 of the Copyright Act, as listening to the previews
constituted research of a purchasing decision (see our
previous post). The Federal Court of Appeal
upheld the Copyright Board's decision and SOCAN sought
leave to appeal to the Supreme Court of Canada.
In upholding the decisions below, the Supreme Court concluded
that the previews constituted fair dealing, applying the test
articulated by the Court in CCH Canadian Ltd v. Law Society of Canada
(CCH).
In applying the first step of the test and determining whether
the previews are provided for the purpose of "research",
the Court rejected arguments limiting the definition of
"research" and affirmed that the term be given a
"large and liberal interpretation". Whether the dealing
constitutes "research" should be analyzed from the
perspective of the user or consumer rather than the online service
provider since it is the consumer who uses the preview for the
purpose of conducting research to identify which musical work to
purchase. As a result, the Court concluded that the previews were
provided for the purposes of research.
The second step of the test required determining whether the use
of the previews was "fair" in accordance with the six CCH
factors: (i) the purpose, (ii) character and (iii) amount of the
dealing, (iv) the existence of any alternatives to the dealing, (v)
the nature of the work, and (vi) the effect of the dealing on the
work. The Court concluded that: (i) the main purpose to provide
previews was to facilitate the consumer's research purposes;
(ii) the previews were streamed and not downloaded, after
listening, the preview was automatically deleted from the
user's computer, and copies could not be duplicated or further
disseminated; (iii) regarding the quantity, the Court confirmed the
"amount" meant the "quantity of the work
taken", the proportion of the excerpt used in relation to the
whole work; (iv) previews were found to be reasonably necessary to
help consumers research what to purchase since there were no other
reasonable alternatives that could effectively preview the musical
work; (v) previews were also necessary in disseminating the work
because dissemination required a consumer to be able to locate and
identify a work he or she wanted to buy; (vi) since the previews
served to increase the sale of the work, they could not be said to
be in competition with it, and thus the dealing did not adversely
affect the work.
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