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Canadian Supreme Court considers copyright matters

By | Published on Friday 9 December 2011


There were two days of copyright debates in the Supreme Court of Canada earlier this week as the country’s highest court considered five separate intellectual property disputes in one go. Good times.

A number of those debates had music rights at their heart, and so reps from the Canadian record industry and publishing collecting societies SOCAN and CSI (performing rights and mechanical rights respectively), plus licensees from the digital, tel co and gaming industries, arrived in Ottawa to present their respective sides of the argument.

Even though some elements of the disputes being considered by the Supreme Court judges are arguably already being dealt with in ongoing efforts by political types to reform Canada’s copyright laws, which many rights owners argue have struggled to protect their rights in the digital age.

Perhaps most interesting of all the debates is the one related to iTunes previews, the thirty second clips consumers can stream in order to decide whether they want to buy a song (or more likely to confirm it’s really the song they think it is). Most rights owners and agencies, including the aforementioned SOCAN, will tell you that constitutes a performance of the music that plays during the clip, and that therefore a royalty should be paid.

However, in a Canadian case called Bell v SOCAN it’s been argued that those clips constitute private research on the part of the consumer, and should therefore be covered by so called ‘fair use’ rights – or, to be technically correct, for copyright systems with their origins in English law, ‘fair dealing’.

The Canadian Recording Industry Association, SOCAN and CSI each presented arguments as to why fair dealing should not apply in the case of preview on download platforms, the latter relying primarily on Canada’s obligations under international copyright treaties.

It’s too soon to say whether those arguments made an impact, although some commentators – albeit those generally opposed to the music industry’s viewpoint on this – felt the Supreme Court judges weren’t too receptive to any of the arguments presented by music business reps.