By 1RadicalOne (Own work) [Public domain], via Wikimedia Commons

By Shaya Silber

A common question in copyright law is how much reproduction or use of a work is considered copyright infringement? In the case of music, The Supreme Court of Canada  (SCC) recently shed some light on this question in SOCAN v. Bell Canada.

Many online music stores offer the opportunity for visitors to listen to a sample of a song before purchasing that song. The samples are typically around thirty seconds. In the past, the copyright owners of the music (either artists, record labels, or collectives who collect royalties on behalf of owners), demanded payment for the use of a song regardless of how much of a song was available for listening. The operators of these stores took the position that the availability of the thirty second sample fell within the “fair dealing” (not to be confused with the American “fair use” doctrine) provisions of the Copyright Act, and were therefore not subject to royalty payments.

The relevant section of the Copyright Act (as it was at the time of the case) read:

Research or private study

29. Fair dealing for the purpose of research or private study does not infringe copyright.

Criticism or review

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a) the source; and
(b) if given in the source, the name of the(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.

The task before the Supreme Court of Canada was to determine whether the music samples fall within the fair dealing provisions of the Copyright Act.

The Court set out a two step test to determine what constitutes fair dealing. First, the SCC asked whether the situation fell within the definition of “research” or “private study”. Second, the SCC asked whether the usage was “fair”.

SOCAN asked the SCC to define “research” in a narrow manner (for example, defining it narrowly would limit the situations that could be considered “research” to scientific research).  The SCC rejected this idea, and defined “research” in broader terms. The decision stated that these previews allowed visitors to conduct research to determine which music to buy. The sample allowed the purchaser to confirm the song that was about to be purchased.

In regards to determining whether the usage was “fair”, the SCC examined the six factors to be used in fair dealing assessments (the purpose, amount, character, alternatives, nature, and effect – click here for further information on “fair dealing”).  After examining these factors, the court confirmed that the usage did not have an adverse effect on the music that would justify a narrow interpretation of the fair dealing provisions.

The court ultimately applied a broader interpretation to “research” in the fair dealing provisions and therefore allowing thirty second previews of songs.