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:
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The Federal Court of Canada has issued its decision
(not yet online) in the judicial review of the Copyright Board of Canada's ringtone decision. The court upheld the decision, marking a big win for SOCAN and a loss for the wireless providers (CWTA, Bell Mobility, Telus) who challenged the Board's decision. The court addressed two primary issues – first, whether the transmission of a ringtone to a cellphone is a "communication" under the Copyright Act and second, whether it is a "communication to the public." While the wireless carriers argued that a communication must only include a transmission that is intended to be heard simultaneously or immediately upon transmission, the court disagreed, ruling that "the wireless transmission of a musical ringtone to a cellphone is a communication, whether the owner of the cellphone accesses it immediately in order to hear the music, or at some later time."
The potentially more important line of reasoning involves whether the transmission of the ringtone is a "communication to the public."
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