For the London Free Press – August 13, 2012
Consumers can breathe a small sigh of relief. The Supreme Court of Canada recently released judgments on five different cases involving copyright collectives — known as the “Copyright Pentalogy” — which heralded a victory for Canadian consumers. Copyright collectives collect licence fees on behalf of creators of materials such as music and books.
The court quashed a plan that would have authorized the collection of additional royalties on music downloaded through legitimate services, on the theory that buying a song by downloading it is essentially the same as buying it in a store. The court also ruled against fees being placed on song previews that we can listen to on sites like iTunes before we buy. The court held that this is research and falls within a fair-dealing exception of the Copyright Act.
Canada’s video gamers and movie watchers can also claim victory. The collectives sought to collect additional royalties for music used in video games and movies. However, the court held that this would amount to a “double-dipping” and that additional royalties would not apply.
Schools also participated in the good news. Ruling against the proposal to collect royalties on photocopies for educational purposes, the court held that the educational use of photocopies is research, and thus fell within a fair dealing exception in the Copyright Act. The court held that it did not matter whether the copying was done by a teacher or a student. There are limits, however. It would not be considered fair dealing, for example, to copy an entire textbook.
These decisions were mainly centred on the common theme of fair dealing. The concept of fair dealing has existed in the Copyright Act for quite some time. The Canadian concept of fair dealing has allowed users to engage in certain activities relating to research, private study, criticism, review, or news reporting. These recent court decisions, and some others over the past few years, have expanded the practical application of fair dealing, which must be given a “large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”
In addition to broadening the right of fair dealing, the court also broadened the approach by deciding that the relevant perspective when considering the purpose of the dealing is the user.
Hot on the heels of these cases is Bill C-11, coming into force some time in the next few months, which further expands the concept of fair dealing by adding education, parody, and satire to the fair dealing list.