12/07/2011 04:16 EST | Updated 02/06/2012 05:12 EST

The Supreme Court of Canada Copyright Hearings, Day One: Fair Dealing Scare Tactics Fall Flat

The Supreme Court of Canada heard three of the five scheduled copyright cases yesterday in an unprecedented focus on copyright. The case featured discussion on how services like song previews or downloadable video games provide revenues for both music creators and the companies.

The Supreme Court of Canada heard three of the five scheduled copyright cases yesterday in the first day of an unprecedented focus on copyright at Canada's highest court. The hearing drew many of Canada's top copyright lawyers and featured a court that was highly engaged in the morning session but content to allow the lawyers to make their case with scant interruption in the afternoon. The three cases involved the Entertainment Software Association of Canada (whether downloading a video game involves communication to the public of the music in the game), the large telcos (music downloads), and Bell v. SOCAN (song previews as fair dealing).

There were several notable developments and lines of questioning. First, the fair dealing discussion that dominated the Bell v. SOCAN case would be familiar to anyone who has followed the debate on Bill C-11 as the usual suspects trotted out the usual scare tactics. The arguments included SOCAN likening music previews to ice cream samples (and therefore not worthy of being treated as research for fair dealing purposes), CRIA arguing for a "circumscribed definition of fair dealing," and CSI claiming that including consumer research within fair dealing could put Canada offside its international obligations.

None of these arguments gained any real traction with the court.

The ice cream analogy, which didn't work on multiple levels, generated smirks among the judges, who could scarcely believe that it made an encore appearance at rebuttal. CRIA's claims that fair dealing could allow for unlimited copying was quickly rejected by Justice Abella, who reminded counsel of the six factor test that must still be applied to determine if a dealing is in fact fair. As for CSI's arguments on the Berne three-step test, their lawyer was forced to admit that no country had complained about the Canadian approach and no international group had sought leave to intervene in the case. In fact, the court seemed very comfortable with the CCH approach that involves a broad and liberal approach, noting that any fairness claims must still be tested by the six factor test. By the end of the afternoon, Apple and the telcos had further demolished claims the approach is inconsistent with international law and a steady stream of intervenors reminded the court of the dangers of restricting fair dealing further. The general consensus was that this was a complete slam dunk win for fair dealing.

The earlier cases involving video and music downloads was somewhat odd in that Bill C-11 will address the issue through a new making available right, yet no one wanted to raise that fact. Instead, there was considerable back and forth on statutory interpretation issues of the meaning of "communication" and "to the public." The argument that seemed to generate the most support from the court was the ESAC's concern that payment for the music on a video game download would create a two-tier approach with payments for downloaded games but no payment if the same game is purchased in a store. Justice Moldaver described it as a "tax on technology" (the language used by Canadian Heritage Minister James Moore in relation to private copying levies) and wondered why Parliament would want to put a damper on the Internet.

The case also featured discussion on how services like song previews or downloadable video games provide revenues for both music creators and the companies that sell the products. Several judges seemed genuinely puzzled at why groups like SOCAN would insist that they were losing revenues by not being compensated for song previews when the previews were helping to generate increased sales. For the copyright community, the answer is obvious- - all rights should be compensated. For the court (and likely for many in the public), this situation often feels like double compensation that makes little sense.

The hearings continue today with another big fair dealing case involving Access Copyright and copying in K-12 schools. While the song previews case focused on the categories of fair dealing and the seeming reluctance of the court to adopt a narrow approach to those categories, the Access Copyright case is likely to generate considerable discussion on the application of the six factor test and the notion of users' rights.

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