Canadian court says music previews constitute “fair dealing”

The Canadian Federal Court of Appeal has ruled that online music services engage in “fair dealing” for the purposes of copyright when they offer “previews” of musical works to consumers.  Previews are samples of usually 30 seconds or less which help consumers to decide, for example, whether to purchase an entire track or album.

This case concerned an application for judicial review by the Society of Composers, Authors and Music Publishers of Canada (SOCAN) – a similar collecting agency to APRA in Australia – from a decision by the Copyright Board of Canada.  In Canada, SOCAN administers the rights to communicate to the public and publicly perform musical works, by collecting licensing fees for those musical works on behalf of its members (consisting of, amongst others, composers, authors and music publishers).  

SOCAN had initially applied to the Canadian Copyright Board for authorisation of a tariff in respect of online music services.  In 2007, the Copyright Board decided that such previews did not infringe copyright or require payment of royalties to SOCAN.  In making its decision, the Board applied a legislative provision which states that “[f]air dealing for the purpose of research or private study does not infringe copyright” – such a preview purpose for consumers is “research” and therefore, fair dealing.  

The FCA upheld the decision, accepting the Board’s assertion that such a preview is “research”. In particular, research could include an activity where “consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it.”  The FCA concluded by agreeing with the Board that “[l]istening to previews assists in this investigation” and streaming of the previews were research for a fair dealing purpose.

Australian copyright law contains similar provisions in relation to fair dealing, but it has not been tested in relation to such samples.  US Courts, by contrast, have previously twice rejected the fair use defense for online previews, in relation to ringtones and excerpts of movies.

(Written by Laurence Marrie, solicitor with editing from Hoi Tak Leung, solicitor.)


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