Our legal and political systems are inherently adversarial. It seems that the political system is too adversarial lately. There are always multiple sides, and they fight to a standstill. That’s fine, but some common sense should temper the fight, which seems an increasingly rare occurrence.
Take what’s going on at the Supreme Court. It’s hearing an unprecedented five copyright cases this week. One of those cases is the basis for my observation of a lack of common sense. In Bell v. SOCAN, the Society of Composers, Authors, and Music Publishers of Canada claims that offering 30 second song previews, the snippets to which you can listen before purchasing music from online music sellers, is not fair dealing. Therefore, the retailer must pay rights-holders when potential customers listen to the previews.
I have never heard anything so ridiculous. The previews are there to generate sales. They are not lost revenue. Research is one of the permissible conditions for using copyrighted material under the fair dealing provision. One listens to a 30 second clip of a song is to determine if one likes it enough to buy, or to determine if it really is the song one has already decided to buy. I’m not aware of anyone ever using iTunes to listen to previews purely for entertainment!
One wonders why SOCAN is going to such lengths about music previews. If they win, online music retailers will simply stop offering previews. In their place, that’s exactly what I would do. SOCAN will get nothing for their effort, and perhaps suffer a revenue drop because buyers are less likely to make impulse purchases without the opportunity to first hear a preview.
Happily, after the first day of the case, the judges do not seem to be buying SOCAN’s arguments. In a report called “The Supreme Court Copyright Hearings, Day One: Fair Dealing Scare Tactics Fall Flat,” Michael Geist states,
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.
Thank goodness. The copyright landscape is already unbalanced enough in favour of the rights-holders. The Conservative government’s Bill C‑11 will only unbalance it further, so these early indications of the Supreme Court judges’ views are only a small victory, but any victory is welcome.
_Don
I took a law course as a part of my curriculum in college, and one thing I always remember was what is known as “the reasonable person test”. Simply stated, it is the judgement of what an average person of normal intelligence would consider in a given situation.
Good to see the judge using this type of common sense approach to this case.