The Supreme Court of Canada has released two decisions that address the scope of fair dealing ‒ a crucial concept in copyright law. Fair dealing trumps the rights of copyright holders. In both cases, the Supreme Court ruled that fair dealing is a broad user’s right and rejected the narrow scope for fair dealing being advanced in the appeals.1
In one case, SOCAN v. Bell,2 the Supreme Court considered whether the 30-second "preview" feature on iTunes was fair dealing for the purpose of research. In the other case, Alberta v. Access Copyright,3 the Court considered fair dealing for research and private study in the context of teachers making photocopies for their students in public schools.
The Threshold Issue: What Constitutes "Research"?
The central question in SOCAN v. Bell was whether the previews of songs available on iTunes were used for the purpose of research, and from whose perspective this question should be decided. Consumers use the previews to choose the songs they want to buy – that is, "researching" their purchases. However, it is Apple, not the consumers, that actually makes the copies by providing the previews online. SOCAN therefore argued that the previews were simply part of commercial activity carried on by Apple to make a profit, and Apple could not rely on the consumers’ research purpose. The Supreme Court disagreed, finding that since fair dealing is a "user right," the question of what constitutes "research" must be considered from the perspective of the ultimate user of the works (i.e., the consumer), not the provider (i.e., Apple).
In addition to finding that the particular facts of this case constituted research, the Court emphasized that "research" needs to be given a large and liberal interpretation, envisioning that the "analytical heavy-hitting" be done in the second stage of the fair dealing analysis – the question whether or not the dealing is "fair."
Application of Fairness Factors
In both cases, the Court had to grapple with whether the use made of the works was fair, using the factors it laid out in its prior decision in CCH v. LSUC. The Court emphasized that the fairness factors must be evaluated in light of fair dealing’s status as a user’s right. Thus, the user’s purpose will invariably play an important role in the analysis, and copyright owners should not be permitted to "drive an artificial wedge" between providers’ and users’ purposes.
The Court also confirmed that, in considering the nature and amount of the dealing, what is relevant is the nature of the individual user’s dealing (and not the provider’s aggregate dealing with different works and different people). This is a key distinction since, as the Court noted, "given the ease and magnitude with which works are disseminated over the Internet, focusing on the aggregate amount … would lead to disproportionate findings of unfairness."
Finally, the Court held that in order to conclude that a particular use has had an adverse effect on a work (which is one of the fairness factors that could weigh against a finding of fair dealing), there must be actual evidence demonstrating an effect as a result of the dealing, not mere speculation or broad trends that do not make a definitive link. This was a key feature of the Court’s finding in the Alberta v. Access Copyright case.
1 Torys LLP acted for interveners in these cases.
2 Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36.
3 Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37.
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