Supreme Court of Canada broadens fair dealing
On July 12, 2012, the Supreme Court of Canada released its decision in two cases that address the scope of fair dealing. 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.
In Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, Torys represented the Canadian Association of University Teachers as an intervener. SOCAN, which represents music writers and publishers, asked the Copyright Board to levy a tariff on the 30-second preview available to iTunes consumers, on the basis that each preview is a copy of a copyrighted work (the song).
The Copyright Board and the Federal Court of Appeal found the 30-second preview to be fair dealing for the purpose of research and private study on the theory that consumers use the preview to "research" which songs they may wish to purchase. The Supreme Court unanimously decided that it was research (giving "research" a broad scope) and concluded that it was fair dealing, dismissing the appeal.
In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), Torys represented the Canadian Association of University Teachers and the Canadian Federation of Students as interveners. This case arose from a decision of the Copyright Board regarding what constitutes fair dealing in the educational context. In this case, the Supreme Court split 5-4 with the majority allowing the appeal and sending the question back to the Board, which was instructed to take a more expansive view of fair dealing for the purpose of research and private study.