Are internet previews of music a fair dealing under copyright?

Last week the Federal Court of Appeal released an important decision on the scope of the fair dealing exception in the judicial review in the SOCAN Tariff 22 case (2010 FCA 123). The issue before the Court was whether online music services have the benefit of the fair dealing exception in section 29 of the Copyright Act when they offer customers previews of music files of up to 30 seconds to help them select music to purchase. The Court, following the decision of the Copyright Board, ruled they do.

The main issues in the judicial review were whether the dealing for preview purposes was “research” and whether such dealings were fair. 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. It submitted that previews over the Internet have none of the characteristics required to fall within the concept of research.

The Court rejected this submission noting that “the word “research” in section 29 was not limited to  “scientific”, “economic”, or “cultural” endeavours.  Further, research could include an activity in which a “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.” The Court agreed with the Board that “[l]istening to previews assists in this investigation” and that the streaming of the previews was research for a fair dealing purpose.

The Court also accepted on the evidence before it that the dealings were also fair. However, the Court noted that there was insufficient evidence to determine whether the overall effects of the dealing would be unfair and decided that without “an enlightened debate on these questions, and given the fragmentary nature of the available information, it would be wiser to leave this issue for another day.”

Those interested in the potential scope of the fair dealing exception for online previews might also be interested in two decisions of US courts which both rejected the fair use defense for online previews. In 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) the District Court for the South District of New York held that it was not fair use to offer previews of ringtones to potential purchasers. In Video Pipeline v. Buena Vista Home Entertainment Inc. 342 F.3d 191, the Court of Appeals for the Third Circuit held that Video Pipeline was not likely to succeed in raising a fair use defence where it provided two minute excerpts from feature films for use as previews on Internet retail websites. Neither of these cases was referred to by the Court in the Tariff 22 judicial review.

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