Thursday, August 12, 2010

SOCAN "PREVIEWS" - A Preview of its Friday the 13th Leave Application?

Tomorrow, Friday the 13th of August, is the deadline as I calculate it for SOCAN to file its leave to appeal ("LTA") application to get this decision from the Federal Court of Appeal ("FCA") on iTune type "prveviews" heard by the Supreme Court of Canada.

The main issue in that case - and it's quite important - is whether the Federal Court of Appeal got it right when it said on May 14, 2010 in para. 22:
SOCAN argues that the primary purpose of previews is not research, but rather increased sales and, accordingly, increased profits. There is no doubt that, for the seller, this is an important objective, one which also benefits copyright holders through reproduction and performance rights. I agree. But this does not exclude other equally important purposes. We must consider previews from the point of view of the person for whom they are intended: the consumer of the subject-matter of the copyright. Their purpose is to assist the consumer in seeking and finding the desired musical work.
(emphasis added)

This decision was put before the same Federal Court of Appeal (different panel) by yours truly in the June 8, 2010 hearing of the Province of Alberta et al ("CMEC" ) v. Access Copyright K-12 decision, also on judicial review from the Copyright Board. I submitted to the FCA on behalf of the intervener CAUT that if the research purpose of a consumer of iTunes songs must be considered, then so should the research or private study or criticism purpose of students. The FCA did not accept this and didn't even refer in their July 23,2010 decision to the SOCAN decision from their colleagues on the FCA three weeks or so before the K-12 hearing.

Frankly, I think that there's a significant inconsistency here between these two decisions within less than three months of each other of different panels of the FCA .

There's also a significant irony that could play out in the next months. SOCAN's LTA application by itself may not be extremely compelling to the SCC. Only about one ten leave to appeal applications succeed. Here, we have a decision where the FCA upheld the Copyright Board and the result is not clearly wrong or unreasonable. Besides, the SCC has heard a lot of copyright cases in the last few years.

However, when different panels of the FCA come to apparently inconsistent conclusions within a few weeks of each other on an important issue arising from two cases from the Copyright Board, the situation may become much more interesting and even compelling to the SCC. This is especially so given the apparent resistance in certain influential quarters to the main messages of the 2004 CCH v. LSUC decision from the SCC.

Not only politics but the law can make strange bedfellows. In this instance, both SOCAN's and CMEC's attempts to get leave to appeal will very likely reinforce each other, assuming that they both seek leave.

SOCAN will file tomorrow, according to what I've heard.

I have no idea whether CMEC will seek leave, and it has until the end of September to do so. In my view, CMEC's decision merits a leave application on its own, and given the above, it would be very surprising if leave were not to be sought by CMEC, whose loss is presumably vastly more economically significant than that of SOCAN in this instance. But SOCAN's LTA application could only help CMEC's, and vice versa.

Given the apparent inconsistency of the FCA case law, not to mention the Coypright Board's own approach, and the vast amount of money at stake in Access Copyright's K-12, and current proposals affecting provincial govenments and post secondary institutions, there are some issues that would seem clearly to be of "public importance" and require resolution, clarification and finality that the Copyright Board and the collectives appearing before it can understand and will follow.

So - good luck in this case to SOCAN on its expected Friday the 13th LTA application.


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