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.

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Companies: socan

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Comments on “Canadian Appeals Court Says Song Previews Can Be Fair Dealing”

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Paddy (profile) says:

Let me get my head around this.

So instead of giving us a free sample, some organisations would rather we just didn’t buy any music at all. This is thinking along the same lines as charging radio stations for playing tracks.

They would soon see how quickly it pisses consumers off, and leads to them buying that other music with the free samples.

Michial Thompson (user link) says:

Re: Let me get my head around this.


Radio Stations brought the latest rounds of performance taxes on themselves. Most Radio Stations encouraged the courts to increased the performance taxes on Internet Streaming of music in an effort to limit the competition against them.

In the end, they got what they wanted, the Performance taxes on streaming music is so high that most are struggling to find business models that work.

I personally would like to see the courts rule that Radio Stations are in the same category as internet streaming, and nail them to the walls that they created.

I understand that many consider the music played on the Radio as “free advertising,” but it is far from that. Radios and the Music Distribution industry have always had contracts that tend to favor certain artists and tend to lead towards those “select” artists getting the air time, and in turn making more money.

ChurchHatesTucker (profile) says:

Re: Re: Let me get my head around this.

“Radio Stations brought the latest rounds of performance taxes on themselves. Most Radio Stations encouraged the courts to increased the performance taxes on Internet Streaming of music in an effort to limit the competition against them.”


However, I wouldn’t be surprised. That sounds like the short-sighted thinking that I would expect from them.

Michial Thompson (user link) says:

Re: Re: Re: Let me get my head around this.

If you look back at the lobbists that were supporting the increases in the performance fees for Internet Streaming and Internet Radio there were several of them that were backed by the big radio stations.

Basically the Radio Stations were claiming that the Internet Radio was hurting their business.

The reality was that what was hurting their business was that they are tied into contracts that force them to play particular songs on a frequency basis, then those same contracts force them into playing unpopular or even unrelated music JUST for the privilage of playing something popular. Where Internet Radio was not locked into those contracts and were allowed to play anything their listeners wanted to hear.

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