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Your Summer IP Playlist
Adam Kowalsky
Adam Kowalsky

Sept 2012-Last week marked the official end of summer. Hopefully, you were able to enjoy some of it relaxing in the sun, listening to your favourite downloaded music. If not, maybe that music provided a soundtrack to summer chores. Summer schedules don't leave much room for perusing Supreme Court decisions. However, in mid-July, the Court released decisions on tariffs, set by the Copyright Board pursuant to the Copyright Act, for downloaded and internet music (the decisions discussed here being: Entertainment Software Association v. SOCAN; Rogers Communication Inc. v. SOCAN; and SOCAN v. Bell Canada). As background, the Copyright Board has over twenty tariffs regarding the various uses to which music may be put. You and I may pay all or part of these fees as part of the cost of the DJ, the downloadable content, in the case of streaming music, any subscription fee, etc. SOCAN (The Society of Composers, Authors and Music Publishers of Canada) is the collective administering music rights including for performance, licencing fees or tariffs and royalties (e.g., so we don't have to track down our favourite artists for their permission). Back to the Supreme Court decisions, there are three (relatively) interest intellectual property (or "IP") law points: 1. The "technical neutrality" of the Copyright Act. SOCAN argued that downloadable videogames required further fees for music within the games. The Court decided this was like double dipping because fees had already been paid for the reproduction in the games. The manner in which the reproduction is delivered (i.e., go to the store and buy the album vs. downloading it from on online provider) should not result in different compensation structures. 2. Streaming music (e.g., online radio) is different than downloading discrete files. Streaming providers make the music available to many different users, broadcasting "to the public", so a public performance fees apply to these providers. 3. Previewing online is fair dealing and fees don't apply to sample providers. Fair dealing allows the use of copyrighted material for certain purposes without infringement. The Court said that those ten-second sound bytes online is a form of fair dealing: it allows us as consumers to research. IP law gets a back rap for being, well, boring and inaccessible, but here are a few cases that remind us (1) our increasing digital and e-commerce world means new solutions to old problems (in the case of copyright, how to balance the public interest and the proper rights of the creators); and (2) the law can be personal enough to fit in our pocket -or ear.

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