So you may remember back in December I wrote about the five copyright cases that were being heard in the Supreme Court. Well probably you don’t remember. ANYWAY, the decisions in the five cases (the “Copyright Pentalogy”) came down last week. And what do you know, they were all pretty much a big win for consumers, and for common sense. Yay, Supreme Court!
It’s really fucking hot, and I’ve got summertime to enjoy, so I have no desire right now to read all five cases. So I’ll be covering the cases (some of them?) over the next few weeks. If you just can’t wait, and you want to know about all five right now, go read Geist or Sookman. I’m sure they each have a team of students who read the cases for them. Me, I’m just one man. So let’s dig into one of the two most “internet-y” of the cases, SOCAN v. Bell, and see what rights for consumers have been affirmed by our esteemed judges.
In one corner, we’ve got SOCAN, the Society of Composers, Authors and Music Publishers of Canada, which is the organization that collects royalty payments for music copyright holders. They are joined by the CRIA (the Canadian Recording Industry Association) and CMRRA-SODRAC Inc. (I have no idea what that stands for, but it sounds bad). These do not sound like organizations you’ll be rooting for. In the other corner, we’ve got the ISPs – Bell, Rogers, and Shaw. My goodness who to cheer for in this fight? Oh wait, Apple is with the ISPs (because the case is partly about iTunes). Do with that what you will.
So what’s the deal here? SOCAN wants money. It’s always about money. Justice Abella, writing for a unanimous court, lays the issue out for us:
The purchase of musical works is increasingly carried out over the Internet. Some commercial Internet sites that sell music allow consumers to preview musical works before making a purchase. The issue in this case is whether those previews constitute “fair dealing” under s. 29 of the Copyright Act.
Pretty simple really. Well, unless you don’t know what fair dealing is. But that means you didn’t read my post from last week, where I explained the concept for you. Go ahead and read that now if you didn’t last week (the fair dealing stuff is somewhere in the middle; CTRL-F is your friend). It’s all good, I’ll just be over here sipping a beverage until you’re done.
Done? So if those musical snippets are not fair dealing, that would mean SOCAN could collect royalty $ on those previews. And guess who would be paying for them? YOU. Maybe not directly, but indirectly for sure. BUT… Supreme Court to the rescue! The Court holds that those previews are in fact fair dealing, and thus not subject to royalties. W00t!
So how did they get there? Well, if you recall from last week, fair dealing only exists in five specific circumstances. One of them is research. So first, the Court decided that these song previews were in fact being used for research purposes. The Court spends 15 paragraphs spelling out why we should take a broad definition of “research”, and that includes personal research, like researching which songs to buy:
…consumers used the previews for the purpose of conducting research to identify which music to purchase, purchases which trigger dissemination of musical works and compensation for their creators, both of which are outcomes the Act seeks to encourage.
I always pictured “research” as being done by people in white lab coats or digging through dusty stacks in a library, but what do I know. Justice Abella says this about research:
It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest.
So Justice Abella is really stretching the meaning of “research” for fair dealing. I swear Your Honour, I only downloaded that episode of True Blood to confirm that the episode was terrible!
Once Justice Abella decided the song snippets were being used for research, she then had to go through the six factors of CCH to determine if the dealing was in fact fair. Again, go back to last week when I introduced this, but now I’ll go to the next step and tell you the six factors: the purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of dealing on the work. See, I told you last week they were boring.
I won’t go through the Court’s analysis of each factor because it’s Friday and I’m sure you want to get to your weekend already. But one factor seemed to me quite important for the Court – the amount of the dealing. SOCAN said that because users listened to ten times the amount of snippets that they actually bought, the amount of the dealing was huge, in the aggregate. But the Court said that’s bullshit; you have to look at the individual snippets, which at 30 seconds is a small amount compared to the whole song. Justice Abella understands the internet:
Further, given the ease and magnitude with which digital works are disseminated over the Internet, focusing on the “aggregate” amount of the dealing in cases involving digital works could well lead to disproportionate findings of unfairness when compared with non-digital works. If, as SOCAN urges, large-scale organized dealings are inherently unfair, most of what online service providers do with musical works would be treated as copyright infringement. This, it seems to me, potentially undermines the goal of technological neutrality, which seeks to have the Copyright Act applied in a way that operates consistently, regardless of the form of media involved
The other factor which seemed quite important is the effect of the dealing on the work. Again, the Court is very sensible when it writes:
since the effect of previews is to increase the sale and therefore the dissemination of copyrighted musical works thereby generating remuneration to their creators, it cannot be said that they have a negative impact on the work.
Seems pretty obvious to me. Not to SOCAN I guess.
So once again we say, good job Supreme Court! Fair dealing FTW.
FTW indeed! Thanks Allen.