Supreme Court of Canada Rules in SOCAN v. Bell

The Supreme Court of Canada confirmed that in the context of fair dealing, the term “research” will be given a broad, user-friendly interpretation that includes forms of commercial research. In SOCAN v. Bell, 2012 SCC 36 (“Bell”), one of the five copyright rulings released by the Supreme Court of Canada in July 2012, the Supreme Court considered whether SOCAN was entitled to royalties for the 30-second song previews streamed by online music retailers. Ultimately, the Supreme Court ruled against SOCAN, adopting and arguably extending the approach from CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 (“CCH”).

A major development in Bell was the expansion of the definition of “research” from CCH. In both CCH and Bell, the Supreme Court began the fair dealing analysis by first determining whether the use constituted “research”, one of the allowable purposes listed under s. 29 of the Copyright Act. In CCH, the Supreme Court held that in “research” must be given a “large and liberal interpretation” which would include some forms of commercial research, such as a lawyer conducting research for the purpose of advising clients and arguing cases (para. 51). The Supreme Court in Bell emphasized that “research” does not have to lead to the creation of any creative work nor the establishment of new facts or conclusions. Rather, research may be “piecemeal,” “exploratory” and undertaken for “personal interest” alone (para. 22). This potentially extends the scope of “research” beyond the CCH definition. The CCH example of the lawyer signifies research for the purpose of creating an end product; in Bell, the Supreme Court indicates that mere curiosity is sufficient to ground “research.”

In the second step of the fair dealing test, the Supreme Court in Bell considered the six fairness factors from CCH, including the purpose, character and amount of the dealing. In finding that the dealing was fair, the Supreme Court highlighted the safeguards in place to prevent the previews from replacing the work. The previews were short, streamed snippets that were often of inferior quality as compared to the original works. Bell reaffirms that commercial research may well qualify as fair dealing if such “reasonable safeguards” apply (para. 36).

The Entertainment Software Association and Entertainment Software Association of Canada were represented by McCarthy Tétrault LLP with a team comprising Barry Sookman, Steven Mason and Daniel Glover.

Rogers Communications Inc., Rogers Wireless Partnership, Shaw Cablesystems G.P., Bell Canada and Telus Communications Inc. were represented by Fasken Martineau DuMoulin LLP with a team comprising Gerald Kerr-Wilson, Anne Ko, Ariel Thomas and Julia Kennedy.

Society of Composers, Authors and Music Publishers was represented by Gowling Lafleur Henderson LLP with a team comprising Gilles Daigle, Matthew Estabrooks, Lynne Watt, Paul Spurgeon and Henry Brown, QC.

Canadian Recording Industry Association was represented by Osler, Hoskin & Harcourt LLP with a team comprising Glen Bloom, former partner Markus Klee and Martin Brandsma.

CMRRA/SODRAC Inc. was represented by Cassels Brock & Blackwell LLP with a team comprising Casey Chisick, Timothy Pinos and Jason Beitchman.

Apple Canada Inc. was represented by Goodmans LLP with a team comprising Michael Koch and Dina Graser.

Canadian Association of University Teachers was represented by Torys LLP with a team comprising Wendy Matheson, Andrew Bernstein and Alexandra Peterson.

Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic was represented by University of Ottawa Faculty of Law with a team comprising David Fewer and Jeremy de Beer.

Federation of Law Societies of Canada and Canadian Legal Information Institute was represented by Dimock Stratton with a team comprising Ronald Dimock, Bruce Stratton and Sangeetha Punniyamoorthy.

Computer & Communications Industry Association was represented by Heenan Blaikie LLP with a team comprising Andrea Rush, John Morden, Stephen Zolf, former partner Brad Elberg, Charlene Lipchen and Judith Parisien.