Previews of Music as Fair Dealing


This post is somewhat curious to write – it is about a decision of the Canadian Federal Court of Appeal which, at the moment, appears not to be available online, thus limiting discussion of the appeal to what has been reported in other blogs and news outlets.  Here is what we know at this time (this post will be updated when the full decision is made publicly available – UPDATE May 25, 2010: the text of the decision is available here):

  • Barry Sookman has reported that at some point last week the Federal Court of Appeal issued a decision in the ongoing judicial review of the Copyright Board of Canada’s decision regarding SOCAN’s Tariff 22.A – according to Sookman, the Court of Appeal has, confirming the decision of the Copyright Board, ruled that offering an online “preview” of a song in order to enable a consumer to decide whether to purchase that song constitutes an example of “fair dealing” for research purposes, and hence no public performance royalty is payable to SOCAN in connection with that preview
  • The Copyright Board of Canada’s original decision (released on October 18, 2007) which was the subject of the appeal to the Federal Court, is available here.  The Board’s conclusion regarding “previews” begins at page 31 of the .pdf.
  • Michael Geist, in his post discussing the FCA decision, evidently has access to a copy of the decision (where does he get those wonderful toys?), and reproduces a passage from the decision which indicates that the FCA has vigorously adopted the Supreme Court of Canada’s guidance in the CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 that the “fair dealing” provisions in the Copyright Act should be given a liberal and purposive interpretation

As Geist notes, the implications of the decision are “very significant”.  In declining to accord the word “research” a restricted interpretation (as Sookman notes, “SOCAN had argued before the Court that the term “research” applied to activities involving investigation, systematic research, critical analysis, scientific inquiry and factual discoveries arising and being carried out in a formal setting”), the FCA has affirmed that, in Geist’s words, “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”.

What may be most significant about the decision is that it may work to undercut the arguments of those (including this writer) who have argued in the past that a “fair use” approach to user’s rights may be more beneficial than the “fair dealing” mechanism currently found in Canadian copyright law.  (“Fair dealing” provides for a prescribed and limited set of acceptable uses (research, private study, criticism or review and news reporting) which fall outside the ambit of a copyright owner’s exclusive rights, while “fair use” is an American concept which allows for an open-ended assessment of the purposes, and so is not limited to the five acceptable purposes found in Canadian law.)

Counter-intuitively, with respect to online “previews” of music, “fair dealing” has proved to be more accommodating than “fair use” – as Sookman notes, in the US decisions on this matter (United States v. American Society of Composers, Authors and Publishers, (In re AT&T Wireless), 599 F.Supp. 2d 415 (S.D.N.Y. 2009) and Video Pipeline v. Buena Vista Home Entertainment Inc. 342 F.3d 191) the US courts have held that offering an online “preview” is not fair use, and that a public performance royalty is payable.  A reassessment of the purported limits of “fair dealing” may be in order.

Though the issue appears settled in Canada, it continues to be live in the United States (at least one of the aforementioned decisions is currently on appeal). Greg Sandoval wrote a detailed article canvassing the various arguments surrounding whether online previews should be considered fair use, which is well-worth reading.

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Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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