Taylor McPeak | Posted February 26, 2024
It’s not hard to imagine scrolling through songs on Apple Music or Spotify, taking the time to listen to 30 second previews and decide what’s going to be added to your playlists before purchasing a subscription from either service. We do it without thinking. It’s just part of the digital music searching process.
But imagine this: You’re looking to purchase individual music from Spotify or Apple Music (or sign up for their subscription service) and you can’t preview music. You have no idea what these songs sound like because the service doesn’t allow previews - or you are allowed to listen to previews, but suddenly the song (or the service subscription) has nearly doubled in price!
That alternative reality could have been true if Bell Canada had not won a copyright infringement lawsuit over ten years ago under the balance principle and a fair dealing defense. In 2012, Society of Composters, Authors and Music Publishers of Canada (SOCAN) sued Bell Canada for copyright infringement, claiming that the use of song previews warranted a tariff to be paid (in addition to the tariff when the song is downloaded).
The case was decided by the Supreme Court of Canada (SCC) under the two-part fair dealing test. The first test was passed as the song previews fell under two of the purposes¹ for fair dealing (research and private study) and the second test was passed after an analysis of the use under the six fairness factors². Both tests were passed and the use of hosting song previews with no cost (i.e. “try before you buy”) were deemed fair. By deeming the song previews fair, the balance principle, a principle the SCC strives to strike when making decisions regarding fair dealing of copyrighted works, was upheld.
Fair dealing is employed on a daily basis by students, faculty, librarians, journalists, and all users of copyrighted materials. This doctrine facilitates balance in copyright law - promoting further progress and accommodating freedom of expression.
Join the MRU Library this week (February 26 - March 1) to celebrate Fair Dealing Week by attending a workshop on undergraduate research and copyright, testing your knowledge with a fair dealing quiz on our Instagram, and participating in the Balancing Act activity (cupcakes included)!
Did you know that the United States has a similar doctrine called fair use? Learn more about how fair use has been used through real examples:
Terms and Conditions: The Graphic Novel by R. Sikoryak (available to check out through the MRU Library)
South Park’s “What What” parody from 2008 episode critiquing the popularity of absurd online videos
Saturday Night Live’s “I Love Sodom” as a parody of “I Love New York”
¹ Purposes for fair dealing stated in the Copyright Act: research, private study, education, satire, parody, criticism, review, and news reporting.
² The six fairness factors are: Purpose of the dealing, character of the dealing, amount of the dealing, any alternatives to the dealing, nature of the work, effect of the dealing on the work.
³ From the SCC’s decision in Théberge v Galerie d'Art du Petit Champlain Inc, 2002 SCC 34
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