Copyright users given more of a fair deal

COMMENT

Two recent Canadian Supreme Court decisions support a broader interpretation of "fair dealing" exceptions to copyright infringement.

The two contexts considered by the court were:

• Consumers previewing downloadable music online.
• Teachers photocopying excerpts from textbooks.

Copyright provides owners with certain exclusive rights to their works – in most cases, copying a work without the copyright owner's permission will amount to infringement.

The fair dealing exceptions to infringement recognise that the public has the right to make "reasonable use" of copyright works in certain circumstances.

Both the Canadian and the New Zealand Copyright Acts provide that fair dealing with a work does not infringe copyright if the purpose of the copying is:

• For criticism or review.
• Reporting of news or current affairs.
• Research or private study.

A fair dealing analysis involves a balancing exercise between protecting copyright owners' rights and access to their works by the public. In determining whether copying for the purpose of research or private study is fair, the following factors are taken into account:

• The purpose of the copying.
• The nature of the work copied.
• Whether the work could have been obtained within a reasonable time at an ordinary commercial price.
• The effect of the copying on the potential market or value of the work.
• The amount and substantiality of the part copied.

In Society of Composers, Authors and Music Publishers of Canada (SOCAN) v Bell Canada, the supreme court found that streaming a preview or sample of a downloadable music track fell within the fair dealing exception for research.

In a two-part analysis, the court first considered whether the act of previewing fell within one of the permitted purposes, and then whether the act was fair.

It found that listening to a sample for the purpose of deciding whether to purchase a music track amounted to research.

It then considered the factors outlined above and held that because of the safeguards around previews put in place by the music provider (they cannot be downloaded, are limited in length and are generally of lower quality), their use for research purposes is fair.

In Province of Alberta v Canadian Copyright Licencing Agency, the supreme court held that teachers should be permitted to photocopy excerpts of textbooks for use by students under the fair dealing exception for research or private study.

Applying the two-part analysis, the court first found that photocopying of textbook excerpts fell within the permitted purpose of research or private study.

The court then considered the above factors, concluding that the purpose of the copying was to help students carry out private study, generally only small portions of textbooks were copied, and there was no evidence that photocopying short excerpts led to loss of textbook sales.

Taking those factors into account, the act of copying was deemed to be fair.

New Zealand courts have previously applied a stricter interpretation of fair dealing based on recognition of copyright owners' rights.

In particular, in the educational context, in 1990 the High Court held in Longman Group v Carrington Technical Institute that photocopying of textbook excerpts did not fall within "research or private study".

Instead, the court found that the purpose of the photocopying was for the teacher's benefit (ie, to assist in teaching the course) rather than for student use (which was incidental).

International intellectual property treaties to which New Zealand is a signatory (such as TRIPs) state that signatories are permitted to allow reproduction of copyright works in certain circumstances, provided that the legitimate interests of copyright owners are not unreasonably prejudiced.

The Canadian decisions reflect a growing trend internationally of a more liberal approach in assessing whether use of copyright works amounts to fair dealing, with perhaps less emphasis on copyright owners' interests.

We expect that New Zealand courts will also trend to adopting a more liberal attitude than that taken previously, with more of a focus on users' rights.

At the same time, New Zealand's legislation is expected to be reviewed in the near future to see whether the fair dealing permitted uses should be expanded, or even a more general "fair use" doctrine introduced.

Watch this space.

Earl Gray is a partner and Claire Foggo a senior associate at Simpson Grierson's Auckland office