Copyright Board Rules Music Previews Constitute Fair Dealing

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.


  1. copyright board hiding crucial info
    How come nobody notice that Copyright Board of Canada censored out SOCAN’s digital music profits info? Was CBoC in bed with the music industry in order to justify whatever ridiculous rates the music industry imposed to users?

  2. The Mind Boggles says:

    Am I to understand that according to SOCAN, shifting bits from one place to another entitles them to money? Do they also claim a cut of every CD sale?

  3. Unbelievable. How does this help artists?!

    That’s all there is to it. The Internet is the middle-man-less future. (Or, in the case of online music stores, at least a few less middlemen.) Why does SOCAN deserve tariffs on music the artists are *directly getting paid for*?

    So, if an artist sets up their own music store (paypal, or cheques in the mail, etc.) do they have to send a cut of all the profits they get on the music they made and distributed to SOCAN?

    This is like saying that SOCAN deserves a cut of every CD sold. Ridiculous. If I was a SOCAN artist, (or any artist selling music online) I would be extremely upset right now. I hope there is enough internal backlash for this to be repealed. Unbelievable.

  4. An article with some decent information can be found here:
    [ link ]

    From the article: “The tariffs, to be charged to iTunes and other companies that distribute music over the Internet, adds three cents to the cost of individual songs that now sell for about 99 cents, and 1.5 cents per track for downloaded albums.”

    I’m really sorry if the link throws off the page.

  5. Surely the last thing that should be done is to increase the price of legal download services. That will only put more nails in the coffin of the music industry. Are they mad and bonkers.

  6. “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.”

    Errr, let me write that so it’s correct:

    “Generally speaking, users who listen to previews are under no legal or moral obligation to do anything.”

    A preview is just that, a low quality snippet of a song and I cannot believe this is even an issue or that The Copyright Board of Canada is doing this. What an incredible waste of time!

  7. And This Taxes Stop Piracy How?
    SOCAN is so far out of touch with Canadian music artists its pathetic.

    To suggest to any intelligent consumer that this money is going back to the artists is absolute, unadulterated bullshit.

    When is this unethical tax creep going to end? How many blooding times do Canadians have to pay to listen to the same flippin’ song?

    Perhaps this money should be put aside by the Federal Government and redistributed to registered Canadian artists who apply and if they don’t apply than the surplus funds are used to fund school and community music programs.

  8. I was at the dentist today and we were talking about the overplayed rotation of radio(which sometimes they play in the office or when the use a Ipod to play tunes.

    Since Socan has already gone after the retail stores, I wonder how long before those greedy b*rds go after the medical profession for playing music in their offices.

  9. SOCAN approached dentists in 2006.

    [ link ]