The Copyright Board of Canada has just issued the first part of its decision in the long-running (since 1996) Tariff 22 case. The Board is prepared to establish a tariff for the communication of musical works over the Internet and while much of the decision is devoted to economic analysis, several key legal questions are addressed. Of greatest interest is its conclusion that offering music previews (ie. a portion of a song) constitutes fair dealing under Canadian copyright law as it can be characterized as copying for the purpose of research. This decision – which is right in my view – highlights the very broad nature of fair dealing following the Supreme Court of Canada's CCH decision.
The Board rightly notes that listening to an excerpt of a work is consumer research into whether they might like to purchase the song, concluding that:
"Generally speaking, users who listen to previews are entitled to avail themselves of section 29 of the Act, as are those who allow them to verify that they have or will purchase the track or album that they want or to permit them to view and sample what is available online."
This interpretation highlights again the importance of CCH – consumer research could easily be applied in many other areas to argue that copying constitutes fair dealing.
The other core elements in the decision, some of which may spark appeals, include a determination that the transmission of a download is a communication to the public, that the tariff can be applied retroactively to 1996, and that it can theoretically be applied to services whose servers are located outside Canada, though the Board acknowledges that the ability to reach outside Canadian borders will depend upon the substantial connection to Canada. The Board says it will "resort to rough approximations to determine what is included in the tariff and what is not." Given the prospect of a Canadian music tariff being applied to foreign services, this issue is still long from settled.