New ruling removes textbook copy fees, video game music tax

The Supreme Court of Canada issued a sweeping set of rulings in the five copyright cases it heard last December, including a case covering iTunes store song sample length. The court has affirmed that "fair dealing" ("fair use" in the US) must be interpreted on the side of the user, and not on the side of copyright holders, except in the case of extreme abuse of the fair dealing statute. In the same session, the court ruled that supplemental taxes applied on downloadable video games weren't a legal "communications" tariff.

In the case of iTunes song samples, rights-holders claimed that the newer 90-second song samples affect sales of the single, and argue that the longer a free sample, the less likely a purchaser is to commit to a sale. The song sample period has been interpreted by the Canadian Supreme Court as "research," which is the crux of the Supreme Court's argument.

Justice Rosalie Abella of the Supreme Court wrote that limiting the definition of research to just scientific or creative purposes would "also run counter to the ordinary meaning of 'research', which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory," the court wrote in its opinion. "It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework."

Furthermore, the judge was concerned with the approach of opponents to consider the Internet as a single whole, combining the net effect of the internet on fair dealing, rather than each finding as a separate entity. Judge Abella specifically addresses that if "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, or its technological sophistication."

Additionally, an attempt by Canada's Society of Composers, Authors and Music Publishers of Canada to impose an additional tariff beyond licensing fees for copyrighted music in video games sold for download was denied by the court. The court discerned no distinction between buying a copy in a store, receiving a copy in the mail, or downloading a copy on the internet, and thus, saw no valid reasoning behind charging a new "communication" tariff on the music-containing software.

United States "fair use" provisions set out four factors to determine if a particular use qualifies: the character of the use (commercial or not), the nature of the work, the amount used, and the effect on the market of the use. Canadian "fair dealing" has a six-factor determination: the purpose of the dealing, the character of the dealing, the amount of the dealing, if there are any alternatives to the use, the nature of the work, and the effect of the use on the work.

All four or six factors, depending on country, have to be applied universally, regardless of distribution method, analog or digital. Legal scholars differ on which country's interpretation of "fair use" is less restrictive and the argument is more complicated when the difference between analog and digital media distribution is considered, but the Canadian Supreme Court ruling and requirement of more liberal application of the six factors, especially when dealing with technological advancement, lighten restrictions considerably.

by MacNN Staff