Supreme Court of Canada rules no separate copyright for iTunes previews, game downloads

Canada’s Supreme Court on Thursday morning further defined the balance between music owners’ right to be paid and the public’s right to use music in ways that don’t trigger copyright infringement. The Court also likened the internet to a “technological taxi” for online content.
In one of five copyright rulings handed down Thursday, the Court confirmed that users shouldn’t have to pay to hear 30- to 90-second song samples on Apple’s (s aapl) iTunes. In a separate ruling, the Court overturned the Copyright Board’s decision that the act of downloading a video game is not a public performance that deserves a separate payment to copyright owners.
The iTunes decision was not a surprise and is consistent with a common sense outlook held by many copyright scholars. The music industry had claimed that the previews — which let consumers play snippets of songs in order to decide whether they want to buy them — are a public performance that require a copyright payment. But the Copyright Board, and now the Supreme Court, held that the previews qualified for the “research” exemption under Canada’s law of fair dealing.
“Fair dealing” in Canada and the U.K. is like America’s “fair use” exemption though often narrower. The music industry raised copyright issues about the iTunes previews in the U.S. in 2009 but appear to have quietly dropped the issue, likely on the grounds that such previews are associated with higher music sales.
The Supreme Court’s related decision concerning copyright and downloads was more controversial. It concerned whether the act of downloading a game was a “performance” of the music in the game that should require a separate copyright payment. Game makers, which had already paid a copyright fee to include the music in the game in the first place, had argued that paying to download a game was no different from buying a physical copy from a store. They said that a download was not a “performance” in this case, and that the music industry’s claim for another copyright payment amounted to double-dipping.
The Copyright Board and then a federal appeals court had sided with the music industry. But a six judge majority overturned the finding, arguing that it violated principles of technological neutrality and that additional copyright layers would punish internet efficiencies:

There is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet.  …  The Internet should be seen as a technological taxi that delivers a durable copy of the same work to the end user.  The traditional balance in copyright between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creators of those works should be preserved in the digital environment.

The iTunes and downloading rulings represented two cases that were part of an unprecedented hearing in which the Supreme Court heard five different copyright cases at the same time last year. The iTunes decision is here and the video game downloading decision is here. The other cases can be found here.