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Federal Court of Appeal Rules Song Previews Can Be Fair Dealing

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Friday May 14, 2010
The Federal Court of Appeal today issued an important decision confirming the broad scope of fair dealing in Canada [link not yet available].  At issue was whether "research" within fair dealing could extend to song previews that are made available on sites like iTunes where a consumer can freely listen to roughly 30 seconds of a song.  The Copyright Board of Canada ruled in 2007 that a broad and liberal interpretation of fair dealing meant that it could be included since the preview was effectively consumer research on whether to purchase the song.  SOCAN disagreed and sought judicial review.

The Federal Court of Appeal has affirmed the Copyright Board's interpretation, opening the door to many other consumer research possibilities under the current fair dealing provision.  While SOCAN argued that research should be limited to scientific-type inquiry in a formal setting, the court disagreed, stating:

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”.

The court was also asked to consider whether the dealing itself was fair given the large number of previews at issue.  The court confirmed that the Board's decision was not unreasonable or in error.

The implications of this decision are very significant.  While fair dealing is still constrained by the current list of exhaustive categories (research, private study, news reporting, criticism, and review), the broad interpretation of research to include consumer research could be used a wide variety of other situations where consumers use a portion of a work as part of their buying decision making process.  Moreover, the broad interpretation of research should be similarly applied to private study, news reporting, criticism, and review, which, with the exception of private study, also do not contain restrictive qualifiers.  This does not mean the law is a free-for-all - the dealing itself must still be analyzed to determine if it is fair - but it does confirm that the door is open to creative uses of the fair dealing provision in Canada consistent with the Supreme Court of Canada's view of a copyright balance between user rights and creator rights.
Comments (26)add comment

ordinary person said:

ordinary people
LOL, "While SOCAN argued that research should be limited to scientific-type inquiry in a formal setting".

That is just insane. Should we all be wired up with DRM-thought police alarms in case we hum a song as well?

That is what artists want?

Who are these artists with SOCAN? I'd like to see which artist in their right mind wants to force people to be in a scientific research lab setting to hears 30-seconds of a lousy song.

Is there a complete SOCAN list of artists someone can provide? I want to see who these anti-consumer thought police members are.

Thank G*d The Federal Court of Appeal is somewhat level headed.
May 14, 2010

jimmy said:

...
what about the fact that people can circumvent and "rip" the sometimes full length previews to their hard drives?
May 15, 2010

pat donovant said:

specials
it's a start.
still no parody provisions, right?

and judges are covered with their special protection?

packrat
May 15, 2010

jimmy said:

limiting artists income will limit their ability to produce the best art
sometimes the difference between good and great is the artists ability to hire a professional engineer or producer. currently this is only available to the most affluent and most successful of artists
May 15, 2010

cndcitizen said:

Technology only for the Affluent???
@Jimmy, I will have to call BS on your above statement. Technology is available to anyone and look at the top 40 crap music that is pushed out using auto tune...man they even have newscasters to the auto tune staing the news...most of these technologies are dollars and you can remix a lot. A friend of mine put together a complete set of tools and sound room for a couple thousand dollars. They make CD's that sound just like from someone in a recording studio...no he didn't by auto tune...there is enough of that junk music out there.
May 15, 2010

cndcitizen said:

re Technology only for the Affluent???
Oh sorry, I should point out he makes the CD's for his band and sells for normally $5.00 as a promotional material at the gigs. He also gives a bunch away at the bar/venue during the night telling people to share. He is not making the million dollar paychecks but he is living well and happy and pretty well always booked. The thing is if your music and ethics are good, you can make a decent living and someday might even become a mega star that can command 150$ a ticket event...but those are few and far between.
May 15, 2010

jimmy said:

@ cndcitizen
you obviously dont know a thing about how great original music is created. ORIGINAL MUSIC!! NOT REMIXES OF OTHER PEOPLES LOOPS AND SAMPLES. WHERE DO YOU THINK THE SAMPLES CAME FROM???
May 15, 2010

jimmy said:

@ cndcitizen
getting pro results with less than 50K in proper equipment is like winning the lottery. radio isnt playing most of that junk because it is not "broadcast quality"
let know when your friend is able to pay his own rent and not sponge off his family, like most seemingly successful artists do these days
May 15, 2010

Eric L. said:

RE: Jimmy
"you obviously dont know a thing about how great original music is created. ORIGINAL MUSIC!! NOT REMIXES OF OTHER PEOPLES LOOPS AND SAMPLES. WHERE DO YOU THINK THE SAMPLES CAME FROM???"

So you think great technology and "professionals" automatically equal great music? So how was great music made before this great technology and predominant professionals? I know plenty of good music from the 50s and before that did not use the technology we overuse today and managed to sound better than any generic rock song today. It's ultimately great and talented musicians that make great music. And often being great and talented isn't enough either. I think that musicians that put time and great effort into the music they make because they want to play music rather than make boatloads of cash will sound a million times more authentic than the group/singer/band which makes a million-dollar hit song and then release manufactured crap because unlimited money has dominated their drive over making music. The music you describe as "great" is merely "technologically manipulated" and manufactured.

"getting pro results with less than 50K in proper equipment is like winning the lottery. radio isnt playing most of that junk because it is not "broadcast quality""

Go tell that to the great talent you find posting on YouTube and MySpace. I bet you'll go over really great there. P.S., broadcast "quality" is an illusion. Radio stations just want songs that make money, period, regardless of their quality. Listen to CBC Radio 2, and you'll hear what happens at a music radio station that is not 100% on profit.
May 15, 2010

oldguy said:

limiting artists income will limit their ability to produce the best art
I beg to differ. Hemmingway, Mozart (and many more) produced their best art when their incomes were limited.

One might even argue that the "best" art comes when the artist is doing it in spite of monetary incentives. No distractions, they can't afford them. I won't go so far as to say the artist shouldn't be rewarded for their efforts, but I will argue that if your only incentive to create art is monetary, you shouldn't be an artist (or a doctor, or an engineer).
A true artist will overcome a simple limitation like access to a "professional engineer or producer". The quality of the art will show through even if it is engineered and produced by "talented amateurs".

May 15, 2010

Tony the Tooth said:

SOCAN "artists".
Seems jimmy is upset his harmonica CD isn't selling too well.

Meanwhile someone more talented and cunning than jimmy will start a newyork times story by saying Simon cowells computer got hacked and put the music online in order to generate hype, more headlines, sales and listeners.

Jimmy, be more creative and artistic like your American counterparts instead of just sitting here all Saturday. Go create some artistic hype. Move those harmonica CD's. You can do it. Oh wait. Easier to harass a dentist office, hairdresser, or some Chinese restaurant for playing music, which is what SOCAN does best.

Didn't SOCAN also try and go after a gym (who didn't play music over it's speakers) because the guy had inputs for MP3 players on some of their machines and people brought their own MP3 players and music to listen to while jogging on the treadmill?

Ah, but that didn't sell jimmy's harmonica CD. Need to sue to make a dollar for Jimmy even though no one listened to a thing by jimmy.

Hype. Always the same. Quite the racket.
May 15, 2010

Eric L. said:

RE: oldguy
"I beg to differ. Hemmingway, Mozart (and many more) produced their best art when their incomes were limited.

One might even argue that the "best" art comes when the artist is doing it in spite of monetary incentives. No distractions, they can't afford them. I won't go so far as to say the artist shouldn't be rewarded for their efforts, but I will argue that if your only incentive to create art is monetary, you shouldn't be an artist (or a doctor, or an engineer).
A true artist will overcome a simple limitation like access to a "professional engineer or producer". The quality of the art will show through even if it is engineered and produced by "talented amateurs"."

I couldn't agree more. Just look at the web film "Star Wreck: In the Pirkkining". Even with almost no budget and a crew of friends doing this project in their spare time, the end result was more creative, original, and impressive than many of today billion-dollar movies.
May 15, 2010

exploder said:

jimmy said:
"what about the fact that people can circumvent and "rip" the sometimes full length previews to their hard drives?"

Then don't put full length previews up if you don't want to give away your work. Duuhhhhh.

"limiting artists income will limit their ability to produce the best art. sometimes the difference between good and great is the artists ability to hire a professional engineer or producer. currently this is only available to the most affluent and most successful of artists"

For a long time, the most affluent artists have been mostly Big Media hacks, nothing more than vehicles for multi-million dollar engines of investment. With a practical monopoly on the industry, a few big companies created their own MONEY PRINTING MACHINE. Hint: that's why you don't hear much good stuff from the 80's, they left out the quality until they got hated, and had to give at little something back.

Don't get me wrong, I would love to see artists get the money they need to hire the best help, studios, etc.. I suggest we take it from the filthy rich scum sucker investors at the top of Big Media, who's gross plastic crap DRM duplication and distribution systems we don't need anymore, so that artists get the lion's share of the profits instead.

And it wouldn't be very expensive, especially these days, to build a couple dozen public access high end recording studios either, to help get good folks off the ground and onto their own feet with an album in hand, instead of into permanent contractual debt to all those big money backers. If they start making good money, they can start paying rent, or build their own studio. Indeed, the cost of the talented support and resources has come way way down now that top end studio equipment costs at most tens of thousands instead of millions. There is a lot of new great producing and recording technical talent with not enough work, while Big Media still strangles the market with their big business greed machine.
May 16, 2010

Ezra Pound said:

...


Nothing written for pay is worth printing. Only what has been written against the market.
May 16, 2010

Gregg said:

But so far...
YouTube had NOT been honouring this decision.
May 16, 2010

Eric L. said:

"YouTube had NOT been honouring this decision."
Unfortunately, YouTube still falls under the idiocy that is the DMCA, since it is an American-based website.
May 17, 2010

Anon-K said:

A good decision, but
not so sure I agree with a broad interpretation of the term "research". I would have preferred to see it made legal as a form of advertising. In this case, the online store, such as iTunes, is acting as a selling agent for the publisher, who is acting as the distribution agent for the SOCAN member. So long as iTunes is making available only the same 30 second clip to all, how is this any different from the selling done on broadcast media. For instance, CTV is currently flogging an album by Nikki Yanofsky (I think I spelled that wrong), previously one by Michael Buble. How is that any different (aside from the voice over of the pitch man) from iTunes providing a 30 second clip? Heck, a local bricks and mortar CD store makes available players so that you can listen to the entire album before making a decision to buy... will SOCAN go after them next?

The problem I have with a broad interpretation of "research" is this. Assuming that prohibition on the removal of DRM makes it into the reformed copyright legislation (regardless of if you agree with it or not) and breaking was allowed as a "research" activity, then all that I need to do to get around the rule is claim that I am doing research on if the DRM can be broken. The only way to verify that it has been broken is to play the media... This would be a situation of a broad definition of research having an effect that is against the intention of the law. Again, I use this as an example; I don't agree with protecting DRM, but rather am of the opinion that breaking DRM for commercial purposes should be against the regulations, while breaking for personal use should be permitted, so long as the broken version is not passed to another living outside of the household (someone who would not normally be expected to have access to the physical media in the case of a DVD).
May 17, 2010

Bw said:

...
@jimmy

"how great original music is created"

Please post some great original music that wasn't built on artist who came before.

You can name Elvis, Beatles, Led Zeppelin... Some of their biggest hits are borrowed idea or straight up rips of other musical influences.

Just put "led zeppelin steals" in Google and there are thousands of links.

The whole idea of culture in music or film is that someone takes an influence or idea and builds upon it with their own works.
May 17, 2010

Eric L. said:

...
I believe that "jimmy" has been successfully countered on all fronts. :)
May 18, 2010

Music Menace said:

Yet another victory for Canada's absurd copyright laws
Another reason to not bother releasing music in Canada - welcome to the backwater of popular culture. If anyone can be relied on to come up with absurd takes on copyright law it has to be the canadians.
May 18, 2010

Anon-K said:

...
@Music Menace: How do you figure? The musicians make $0.29 from every CD that I use to record the photographs that I take on... Generally one has to pay for advertising, and let's face it, that is what this is. Or is it that you object to the consumer being able to make an informed decision to purchase?
May 18, 2010

MaynardKrebs said:

...
SOCAN's argument, if extended to books, would result in stores or on-line booksellers being required to keep books 'behind the counter' (as in the old LCBO days) or sealed in shrinkwrap prior to sale - with no possibility of refunds. Stores like Indigo would be forbidden from permitting customers to open and browse though pages of a book prior to purchase - they would be forced to rely upon publisher's own glowing reviews of the books in order to make a purchasing decision.

Come to think of it, why isn't SOCAN going after Indigo and their in-store little listen to a CD kiosk - that probably constitutes a 'public performance' for which a royalty is payable. Of course that would be a bit of killing the goose that laid the golden egg - but then again organizations like SOCAN and XXIA's are prone to doing that.
May 18, 2010

a.martin said:

...
@Music Menace How dare we let society evolve! everything must be 100% pay and if you have no money, then your a useless worm that can't have any DATA Mwhaha
May 18, 2010

tom said:

"Harmonica CD"
Hilarious Tony the Tooth! Nobody has listened a thing by Jimmy because he doesn't want potential paying customers to preview it for 30s. Even if they did sample it for 30s, it's probably worthless, since Jimmy banks on hype rather than quality.

Anyhow, it's good to see Canadian judges aren't for sale compared to our politicians.
May 22, 2010

jimmy said:

pft
jimmy chooses not to argue with idiots full of rhetorical crap and who really know nothing about the life of musicians. some of you sound like dead beat dads
May 25, 2010

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