Tuesday, April 19, 2011

Fair Dealing, Standard of Review and Possible Interventions at the Supreme Court of Canada

The Supreme Court of Canada’s hearing process involving the SOCAN “Previews” case is well underway. SOCAN has just filed its factum (redacted version attached). Although the fact situation arises from the fairly specific circumstance of the use of 30 second previews of songs on iTunes, the overall issues that will inevitably be argued  go straight to the heart of what is “fair dealing” and what “research” means. If the Court finds in favour of SOCAN and its reasons are framed more generally than necessary, the decision could have far reaching negative consequences for those who believe that fair dealing is important.

Unfortunately, we do no not know at this time if the Court will grant leave in CMEC’s (Province of Alberta et al)  K-12 case, which involved the apparently far more general issue of whether material prescribed by a teacher or provided in multiple copies can be fair dealing. The CMEC Leave to Appeal application is attached. This is the other side of the coin to the previews case. In the former, the Federal Court of Appeal looked at the “purpose” of the user. In the latter, the Federal Court of Appeal refused to do so. The decisions are only a few weeks apart but emanate from different panels of the Federal Court of Appeal. The results are frankly not apparently reconcilable. Normally, we would know by now if the CMEC case would be heard. It is a mystery as to why the Court has not yet ruled on this.

What we do know is that the Court has decided to hear two other cases arising from SOCAN’s never ending Tariff 22 “music on the internet” case. These cases focus on whether there was, in the circumstances involved, a “communication to the public”. They do not involve fair dealing. Apart from the fact that these cases all stem from SOCAN’s Tariff 22 tariff, all involve the internet, and all come from the Copyright Board, there is nothing else obviously in common - except perhaps for the very troublesome but important  question of “standard of review” generally and with respect to decisions from the Copyright Board in particular.

It is interesting that SOCAN’s Tariff 22, which began its life in 1995,  has already been to the Supreme Court of Canada once, and was ruled on in 2004. Although Tariff 22A for online music services is now generating over $11 million a year, the rest of the tariff is a work in progress and appears to be far more beneficial to the numerous lawyers involved than to composers and authors.

All of these three cases will be heard together - likely in one day  - with the possibility of compressed time allotments for each case. In normal circumstances, the parties would get one hour each and interveners 10 minutes each. The other two communications cases are on a different timeline than the “previews” case - but everything will converge on December 6, 2011.

I was - but no longer am - confident that the SCC will necessarily grant leave in the CMEC case. The unusual delay in rendering judgment on the leave application and the fact that two less obviously related cases that have nothing to do with fair dealing have been linked to the “previews” case gives one cause for doubt. But hope springs eternal. Ideally, CMEC will get leave for its case and there will be a standalone hearing. (I should disclose that I was involved in this case in the Federal Court of Appeal for the intervener CAUT). 

Accordingly, any party interested in either issue  of “fair dealing”/ “research” or  the common element of standard of review may wish to seek leave to intervene in the previews case and to join the fray on December 6, 2011, when these cases are scheduled to be heard.

Potential interveners may wish to combine their efforts. This may not only save costs but enhance the chances of being heard under these somewhat unusual circumstances in which time allotments will be scarce and likely very limited.

Applications for leave in intervene must be filed on or before May 16, 2011.

Potential interveners may include those interested in issues involving:
•    education
•    libraries
•    archives
•    museums
•    publishing
•    freedom of expression
•    academic freedom
•    marketing and sales
•    retailing
•    operators of websites that provide previews, thumbnails or other limited versions of protected works
•    research of any kind, commercial or otherwise
•    administrative law generally, and standard of review at the Copyright Board in particular


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