a guest post from Pippa Wysong

Next week the Supreme Court of Canada will hear the case Society of Composers, Authors and Music Publishers of Canada et al. v. Bell et al.  Readers may recall that this concerns the sheltering of music file previews as consumer research under fair dealing.

I had the pleasure of receiving the following story from journalist Pippa Wysong. She writes about science, technology and medicine for audiences that range from children to specialized medical practitioners. Her work has appeared in a variety of publications including The Globe & Mail, The Medical Post, WebMD, and more.  The ‘Ask Pippa’ column for children ran in The Toronto Star from 1988-2008.

The Impending Extinction of Free 30-Second Music Previews – by Pippa Wysong

A dialogue in which my imaginary friends Justine and Frank discuss upcoming Supreme Court activity which could hinder access to music samples and the ability to make informed purchasing decisions, and further beat down fair dealing.

Frank: Hey. I’ve got a copy of the latest attack on fair dealing. And, it just might affect what you are doing now.

Justine: What? Let me take my headphones off. I was just listening to some music previews so I can decide whether or not to buy the newest songs from the imaginary all-Canadian group the Songsters. What do you have?

Frank: I’m holding a copy of a document the Canadian Recording Industry Association (CRIA) submitted to the Supreme Court of Canada. They want to stop you from being able to listen to those 30-second music previews. Well, maybe not stop you from listening to them, but they want to change the definition of what they are.

Justine: Why?

Frank: It’s all in the name of helping quash fair dealing – you know, the ability to use a reasonable amount of material for free — for personal use, research, the ability to mock it, or make purchasing decisions.

Justine: What are you talking about?

Frank: They suggest that listening to free music clips is material that copyright holders don’t get compensated for.

Justine: Um, I see. But you know, the musicians often are not the copyright holders – they wouldn’t get extra money anyway. Musicians need to read the fine print in their contracts.

Frank: Yeah, I’m not so sure musicians even have a problem with the previews. A lot have them on their own websites to showcase their music. Still, if I’m reading this right, CRIA says previews fall under fair dealing, and fair dealing is evil.

Justine: Evil? It’s helping me decide where to spend my money. It’s personal research.

Frank: Research? You’re planning to write a book? An academic paper?

Justine: Er, no. This is research to help with my purchasing decision.

Frank: CRIA says that’s not research. Apparently they think that’s not a valid reason to listen to previews.

Justine: What? Of course it’s a type of research. Consumers often do research, comparing products, checking them out, to help with purchasing decisions.

Frank: They say its ‘marketing.’ The preview services are marketing to you, but you don’t use them to do research.

Justine: I’m using the 30-second clips they created for their marketing to help me make my decision. They market — I use that material for personal-decision research.

Frank: Nope. Not allowed. If it’s research, it falls under fair dealing, and that’s evil. If they can define it as ‘marketing’ instead of ‘research’, then when you buy the songs you’ll have the privilege of paying extra for having listened to the 30-second clips. In fact, I’d bet the music companies would like to charge people a dime each time you listen to a preview.

Justine: That’s outrageous! Who says they want to charge a dime for letting you listen to a preview of a song you might want to buy?

Frank: Nobody. But you can imagine that’s the next step.

Justine: Okay. So there are web-based services out there making 30-second samples available. Does this mean I’m not supposed to listen to them? Why are they there in the first place if something is wrong with it all?!

Frank: It’s about compensation to the copyright holder – the music companies.

Justine: Well, if they think it’s such a big deal, they shouldn’t have made them available to begin with. How can you make samples available for years, then complain about the system while still leaving them there?

Frank: I guess that’s what marketing is. I think they’ve tried asking for compensation before too.

Justine: Wait. How is listening to a music preview different from when I read sample paragraphs from a book I want to buy?

Frank: Dunno. But I’ll bet when all books are electronic, looking at preview paragraphs will probably be added to the purchase sale of the book. At least one copyright collective is bound to fight for that.

Justine: That’s insane. The music companies just want to find another way to make consumers pay more for their products. It’s a money grab!

Frank: They really don’t want listening to previews considered as ‘research’. This whole document belabours that point. In the Copyright Act, if something is used as research material, it falls under fair dealing and no-one has to pay extra for that. One of the definitions for research mentioned is “diligent and systematic enquiry or investigation into a subject in order to discover facts or principles.”

Justine: I’ve listened to four 30-second clips on the new album – I’d say that’s both diligent and systematic. I’m finding that one track is little too heavy in the rhythm track for my taste, and the vocals and lyrics in two songs sound quite lovely and have nice harmonics. Those are facts and principles I’ve discovered.

Frank: You’re on shaky ground.

Justine: They’re just using legalese and word play to jerk around definitions to make it sound like my listening to samples isn’t research – in a normal, casual context of the word ‘research’. It’s nice of them to offer this marketing material for me to study.

Frank: They say that ‘research’ shouldn’t include shopping activities.

Justine: So, when you compared models, makes and prices of cars when you were buying a new one, you weren’t doing research?

Frank: Er, I was ‘shopping around’.

Justine: You had lists with numbers, read reviews posted on consumer sites, talked to and interviewed sales reps. You gathered pages and pages of information. That sounds like research to me.

Frank: Right. Shopping around.

Justine: Okay, as of November 30, 2011, here’s the online Merriam-Webster definition of ‘research’: “1. careful or diligent search; 2. studious inquiry or examination; especially: investigation or experimentation aimed at the discovery and interpretation of facts, revision of accepted theories or laws in the light of new facts, or practical application of such new or revised theories or laws 3. the collecting of information about a particular subject.” I argue that I am ‘collecting information about a particular subject’. As an example of the usage of the word research, this same dictionary has “He did a lot of research before buying his car.”

Frank: So, you’re saying shopping around is a type of research?

Justine: Yes. When I listen to music samples, I’m shopping around, researching them. I might listen to cover-versions as well, and sometimes read reviews. I’m not doing as much research as you when you bought the car, but I’m still compiling information, even if it’s based just on listening, thinking about it and using the material to form an opinion.

Frank: Don’t you think musicians should be compensated for use of the samples?

Justine: Marketers know that in order to sell more product, you sometimes give out something for free. They give thousands of free copies of whole songs to the media. Cheese companies sometimes have people handing out free samples of cheese in grocery stores. Thirty-second samples are what, a sixth of the length of the song, so they don’t have an intrinsic value – in most cases they wouldn’t be able to sell samples. Well, except for maybe those odd bits that might work as a ring tone. Anyway, it’s marketing for them, research material for me.

Frank: Hmm.

Justine: You know, if this nonsense continues and the price of music goes up because they end up adding in the cost of listening to samples, or samples are no longer available – I’m just not going to buy music anymore.

Frank: What will you do instead?

Justine: Buy more cheese.

100 years of music previews

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 19^th 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…