A review of canadian law of marketing, digital media, advertising and trade-marks
Today I didn’t get as much work done as I had hoped. While this is a common lament from me, today I had an extra awesome reason – COPYRIGHT SUPREME COURT HEARING WEBSTREAMING BONANZA!!!
Today and tomorrow the Supreme Court of Canada is streaming five hearings, all on various copyright issues. All of the cases arise from hearings before the Copyright Board to determine appropriate administrative tariffs, so much of the jurisprudence may be regarding administrative law rather than copyright. However, what I saw today was some very interesting discussion regarding fair dealing, and a peppering of some very smart counsel with questions by the Honourable Madam Justice Abella and other Justices.
Links to all of the web-streams remaining tomorrow and the facta can be found here at ippractice.ca.
Much of the discussion is on Fair Dealing, which is an exception to copyright in Canada, but far more limited to the american doctrine of Fair Use, which includes protection for such broad things as parodies (which our law does not). Of particular interest, Abella strongly challenged the submissions that users’ rights are entitled to some sort of constitutional protection, on the basis of free speech, on par with the free speech rights of the composers and authors. I must say I don’t see the logic in this argument either and think it is a stretch to say that user rights are constitutionally guaranteed by the Charter.
The majority of the tension in these hearings is that SOCAN and other composer/author groups are advocating for a narrow reading of fair dealing, limiting the research exception, for example, to a small set of circumstances, and not to commercial activities such a previewing music clips before you buy them. The opposing position is put forward by various user groups who argue that the fair dealing exceptions should be interpreted broadly, so as to encompass lots of different activities. I admired the counsel for the intervener Canadian Association of University Teachers’ point when she said ‘although it could be said that I represent the elite (university profs in the proverbial ivory towers), I urge you not to limit the fair dealing provision only to that elite.’ Well said.
It was also interesting to hear the submissions of Apple Inc., who advocates that previews of a music file are not the same as playing on the radio, because the radio sells advertisements, whereas the preview is simply a sampling of the goods consumers are going to buy. I must say, it seems different to me. SOCAN replied that there is a cost if you sell a sample of food in a store. It made me wonder whether HMV and Virgin, when they set up headphones on the walls of the store to sample, payed an extra SOCAN fee for that right. That strikes me as odd.
I recommend you tune in tomorrow if you can. The rows are filled with some especially brilliant counsel making some expecially brilliant submissions (for the most part).