There were several notable developments and lines of questioning. First, the fair dealing discussion that dominated the Bell v. SOCAN case would be familiar to anyone who has followed the debate on Bill C-11 as the usual suspects trotted out the usual scare tactics. The arguments included SOCAN likening music previews to ice cream samples (and therefore not worthy of being treated as research for fair dealing purposes), CRIA arguing for a “circumscribed definition of fair dealing”, and CSI claiming that including consumer research within fair dealing could put Canada offside its international obligations.
None of these arguments gained any real traction with the court.
The earlier cases involving video and music downloads was somewhat odd in that Bill C-11 will address the issue through a new making available right, yet no one wanted to raise that fact. Instead, there was considerable back and forth on statutory interpretation issues of the meaning of “communication” and “to the public.” The argument that seemed to generate the most support from the court was the ESAC’s concern that payment for the music on a video game download would create a two-tier approach with payments for downloaded games but no payment if the same game is purchased in a store. Justice Moldaver described it as a “tax on technology” (the language used by Canadian Heritage James Moore in relation to private copying levies) and wondered why Parliament would want to put a damper on the Internet.
The case also featured discussion on how services like song previews or downloadable video games provide revenues for both music creators and the companies that sell the products. Several judges seemed genuinely puzzled at why groups like SOCAN would insist that they were losing revenues by not being compensated for song previews when the previews were helping to generate increased sales. For the copyright community, the answer is obvious – all rights should be compensated. For the court (and likely for many in the public), this situation often feels like double compensation that makes little sense.
The hearings continue today with another big fair dealing case involving Access Copyright and copying in K – 12 schools. While the song previews case focused on the categories of fair dealing and the seeming reluctance of the court to adopt a narrow approach to those categories, the Access Copyright case is likely to generate considerable discussion on the application of the six factor test and the notion of users’ rights.