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Federal Court of Appeal Rules Song Previews Can Be Fair Dealing

By Michael Geist

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.

Full post as published by Michael Geist on May 14, 2010 (boomark / email).