Canadian Appeals Court Says Song Previews Can Be Fair Dealing
from the you-need-a-court-to-tell-you-that? dept
While the US entertainment industry continues to insist that Canada’s copyright law is way too “friendly” to would-be infringers, one area where it most certainly is not is in the area of fair use. Up in Canada, they don’t even have fair use, but the much more limited “fair dealing,” which is rigidly defined (unlike fair use) — with one area being “research.” Apparently, the Copyright Board of Canada ruled back in 2007 that the 30-second previews of music found on services like iTunes counted as fair dealing, because it was consumer “research” into whether or not they wanted to purchase the song. In response, the Canadian songwriters group SOCAN disagreed and asked a court to review. According to SOCAN such a broad definition of “research” was not what Canadian copyright law intended. In SOCAN’s view, “research” only meant scientific research (so, only folks in science labs and white lab coats could listen to 30 second previews legally).
Thankfully, the Canadian appeals court disagreed, saying that consumer research definitely can count as “research” under fair dealing:
The legislator chose not to add restrictive qualifiers to the word “research” in section 29. It could have specified that the research be “scientific”, “economic”, “cultural”, etc. Instead it opted not to qualify it so that the term could be applied to the context in which it was used, and to maintain a proper balance between the rights of a copyright owner and users’ interests.
If, in essence, the legal research such as that referred to in CCH has a more formal and rigorous aspect, the same is not necessarily true for that conducted by consumers of a work subject to copyright, such as a musical work. In that context, it would not be unreasonable to give the word “research” its primary and ordinary meaning. The consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it. I agree with the Board that “[l]istening to previews assists in this investigation”.
Of course, this is somewhat similar to ASCAP down here in the US recently trying to claim that those same 30-second previews required a performance license — which, thankfully, was also rejected. Both situations show the ridiculous lengths that some of these organizations will go to, in their attempts to squeeze money out of places that are clearly promotional and where it should be obvious that the uses aren’t just “fair use” or “fair dealing,” but in the best interests of the songwriters in getting their songs heard and known.