In Canada, copyright collectives accumulate the rights of large numbers of copyright owners, and collect license fees for otherwise infringing acts on behalf of the owners. The activities for which money is collected, and the rates, typically require approval by the Copyright Board. Such hearings can be hotly contested because a lot of money is at stake.
The copyright collectives are always questing to add new activities to their revenue stream. A recent target is music sampling. Bell Canada makes 30 second music clips available to prospective purchasers of complete copies of the music, so that purchasers can shop with knowledge of what they are buying. The collective SOCAN would like to attach a tariff to making these excepts accessible online.
The Copyright Board said that users copying such clips are doing research. Doing research is not copyright infringement, and therefore need not be subject to a tariff. The Board also held that a 30 second excerpt is not a substantial copy of the whole work, largely because the sample is not a substitute for the whole and does not displace any sales. Nothing makes this clearer than the answering argument of the copyright collective SOCAN, which was to instead aggregate the amount of music copied and consider it as hours of uncompensated use. Copyrights are infringed one work at a time, making this argument a tacit admission that sampling is not infringement in individual recordings.
Professor Michael Geist has commented on the Federal Court of Appeal decision at http://www.michaelgeist.ca/content/view/5036/125/. He points out that the finding that “consumer research” is “research” is significant. It is, but since the Supreme Court has already told us in the CCH case not to parse the “research” exception to infringement down into subtypes of research, the decision is more illustrative than precedential.
Perhaps what is most interesting is what the Federal Court of Appeal did not say. Under section 80 of the Copyright Act, it is not an infringement of copyright for an individual to make a copy of an entire musical work for non-commercial use. In addition, users pay for this copy by a tariff which is already levied upon them in the purchase price of blank CDs. There would seem to be available arguments that there is no point in fussing over a fraction when the whole is exempted anyway, and that a new tariff could be seen as double recovery.
It took the Federal Court of Appeal 29 paragraphs to reach this predictable conclusion. Presumably the Supreme Court’s interest in hearing the case is based upon the large amount of money involved and the large number of people from and to whom wealth would be transferred.The future of the digital world will increasingly involve subdividing works, indexing, cataloguing and searching them. Perhaps this appeal will provide useful goalposts for these practices.
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