Yesterday Sam Trosow noted that the Canadian Recording Industry Association (CRIA) is seeking to narrow the scope of fair dealing. Their concern stems from a 2010 decision by the Federal Court of Appeal which sanctioned the use of 30-second previews of songs by online music services. The appeal was in reaction to a Copyright Board decision which deemed that: (1) previews function as consumer research and thus are eligible as fair dealing; and (2) the manner by which previews are employed is consistent with fair dealing.
Writing for the Federal Court of Appeal in SOCAN v. Bell (2010), Justice Létourneau returned to the analysis of the Copyright Board, taking care to consider what “research” means and how the Copyright Act introduces the word:
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 (para.18).
A key point presented by the Copyright Board, and repeated by Justice Létourneau, is that the preview aided a consumer in making a purchasing decision:
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.” (para 21).
But Justice Létourneau went even further and emphasized the importance of considering the consumer:
SOCAN argues that the primary purpose of the previews is not research, but rather increased sales and, accordingly, increased profits. There is no doubt that, for the seller, this is an important objective, one which also benefits copyright holders through reproduction and performance rights. I agree. But this does not exclude other equally important purposes. We must consider previews from the point of view of the person for whom they are intended: the consumer of the subject-matter of the copyright (para. 22).
Free musical previews towards purchase of an “object of copyright” is hardly new to consumer activity; it coincides with the ability to record music. In War Stories (2002) professor Jessica Litman describes an exemption covering the use of coin-operated phonographs to promote the sales of sheet music:
The coin-operated phonograph or gramophone had been invented in the late 19th century. In the early 1900s it was an unamplified, single-play novelty machine, found in penny arcades, playing whatever song the local sheet music store designated as song-of-the-week. Congress exempted these machines so that the operators of penny arcades wouldn’t need to buy a copy of sheet music or otherwise seek permission for what, after all, was a novelty device being used to promote the sale of sheet music (p.17).
Another hundred years would be nice…