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Brief Counsel

Canada clarifies copyright

05 September 2012

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​The Supreme Court of Canada has been prolific on copyright issues in recent times – with mixed results for rights-holders and for content users. 

Of particular interest is the Court’s approach to the fair dealing defences and to technological issues surrounding the use of musical works.

Fair dealing

Commercial music selling websites will often permit users to preview a snippet of a musical work in order to decide whether to purchase it.  The question before the Court was whether this was covered by the “fair dealing” defence allowing people to use a copyright work for research or private study.

The Court set a low threshold and concluded that the use of previews by a consumer for the non-creative purpose of investigating and identifying works for purchase could constitute research.

It also concluded that the dealing was “fair” because the limited length and degraded quality of the previews would ensure that they were only used for research purposes and that they would aid the legitimate dissemination of the genuine work and so would not negatively affect the copyright holders’ interests.

In a companion case on a similar issue the Court looked at the fairness of research copying for education and concluded that the appropriate perspective to apply is that of the consumer and not the copier of the work. 

Accordingly, a teacher who photocopied extracts from textbooks for a class, even without any request to do so, would come within the fair dealing exception.  The Court considered that the purpose of the teacher in making the copies could not be severed from the students’ study.  It would be so severed, however, where the copying had a commercial purpose.

The Court’s view on this issue is different from influential New Zealand High Court authority on the subject and may see the issue revisited here.

Musical works on the internet

When you download music off the internet are you reproducing it?  Or communicating it?  Why would you care?  Because it may be relevant to the royalties that you are required to pay under a licence agreement.

The Court concluded that a download of a musical work over the internet is a reproduction of the work, rather than a communication, and that, for these purposes, the internet is a “technological taxi” – a mode of delivering a durable copy of the work to the ultimate user. 

A communication, by contrast, is linked to the performance right which is impermanent in nature.

Interestingly, the Court noted that repeated point to point transmissions of the same work to multiple different recipients will constitute a communication to the public.  That may be an observation of interest and relevance to providers of file sharing services.

Chapman Tripp comment

There is something for everyone in the Supreme Court of Canada’s findings, however right-holders are probably not overly enthusiastic about the lower threshold for the research exception. 

Given there is talk of New Zealand’s fair dealing defences being reviewed and re-tooled at some point, it is likely that these Canadian developments will wield some influence.  In the meantime, those previewing musical purchases on iTunes can honestly tell their parents that they are conducting research.

Our thanks to Justin Graham for writing this Brief Counsel. For further information, please contact the lawyers featured.

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