Pascale Chapdelaine is a Ph.D. candidate at Osgoode Hall Law School and a member of IP Osgoode. Pascale's thesis focuses on the interaction between consumer law and copyright law.
What is the consumer entitled to do with musical recordings for her own personal use? Asking this question may appear to some, including consumers, as looking for trouble. Yet new technologies have proven to be an empowerment as well as a threat to both the consumers and copyright holders. How far can technological protection measures go? Is it a matter to be determined solely by terms of use, or can copyright "user rights" as recently so labeled by the Supreme Court of Canada be invoked to counter them?
To these questions, the Canadian Copyright Act1 (the "CCA") offers no clear-cut answer. Between the narrow scope of the private copying regime (s.79 to 88 of the CCA) and the new realm of possibilities opened up by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada2(" CCH") on the application of the fair dealing provisions, one is left with more questions than answers.
As the music industry is adjusting its methods of distributions to the digital world, various models emerge, from restrictive terms of use with or without technological protection measures (ex: iTunes Plus) to no terms and conditions with technological protection measures, to other combinations of the above.
In this landscape of legal uncertainty and various terms of distribution, what weight should we give to the "reasonable expectation of the consumer" to clarify what is the scope of permitted use of musical recordings for personal use?
The "reasonable expectation of the consumer" is a test borrowed from contract law. It helps delineate the scope of implied or unclear terms in a contract. The expectation needs to be demonstrable and within reasonable limits: not all expectations would be taken into account. As musical recordings may be accessed lawfully without specific terms of conditions of use being attached to them (e.g. through the purchase of a CD or allowing a friend to borrow that CD) this test could apply in that instance. The test could also be useful to assist the judiciary in defining the scope of consumer "user's rights" of a broad range of copyright materials, as well as assist Parliament in the context of copyright reform.
Although I am not aware of any decision in Canada having applied this test specifically to define the scope of permitted use of copyright materials, at least two French tribunal decisions have considered the reasonable expectations of consumers with respect to the scope of use of purchased CDs of musical recordings3. In assessing what that reasonable expectation could be, the following factors could be taken into account: price, industry practice (including terms of use and technological measures), available technology to access the musical recordings and consumer trends as reflected in consumer surveys. The interests of copyright holders and the highly publicized music industry practice of pursuing alleged consumer infringers could be factors tending to limit the expectations of consumers. For its part, the lack of clarity of the CCA on the scope of permitted use of copyright material for personal use could either be interpreted as creating no expectation at all, or expectations that are strictly limited to the private copying regime4. Conversely, it could give way to the application of the "reasonable expectation of the consumer", precisely to fill the gap left by that lack of certainty on the scope of permitted use for personal purposes. In CCH, the Supreme Court of Canada does not refer specifically to the reasonable expectation of the consumer (or user) as one of the factors to establish whether the dealing of copyright material is fair. However, as stated by the Court, the six factors used are not exhaustive5, which opens the door to other considerations, such as the reasonable expectation of the consumer. Also, the Court refers to industry practice as one means to establish whether the character of the dealing is fair, a factor also considered to determine the reasonable expectation of the consumer.
Applied to the interpretation of a contract between a consumer and a distributor of musical recordings, in some cases, specific terms of use brought to the attention of the consumer could defeat any consumer expectation contrary to the notified terms. A general notification of a technological measure preventing copying may not suffice, as recently held by a French tribunal6. On the other hand, one may reach a different conclusion if the contract term (whether the consumer is notified or not) would amount to overriding one of the exceptions to copyright infringement of the CCA, recently characterized as "user rights" in CCH, on the basis that such rights may not be contracted out. It seems that in such a case, it is not the reasonable expectation of the consumer that would be at stake but rather the permitted scope of rights and restrictions that may be the object of the contract pertaining to the copyright work.
While the "reasonable expectation of the consumer" test offers flexibility and room to grow as market conditions, and cultural and innovation policy reflected in copyright law continue to evolve, its application is not without difficulty. The few questions raised above, such as the interaction between the CCA (including the private copying regime) and contracts, and their effect on consumer expectations, require further investigation. However, the reasonable expectation of the consumer test has the merit of providing a framework to "streamline" the consumer perspective on this boiling copyright issue, within a legal regime that has traditionally predominantly focused on the copyright holder. In that context, a greater articulation of consumer interests is an imperative and an interpellation in the aftermath of CCH. The reasonableness requirement attached to the consumer expectation may also be in tune with the need to balance the interests of the copyright holders and their users, as recently reiterated by the Supreme Court of Canada7. For that reason, this test may in the future have some weight in the balance.
1 R.S.C. 1985, c. C-42.
2 [2004] 1 S.C.R. 339, 2004 SCC 13.
3 Tribunal de Grande Instance de Nanterre 6ème chambre Jugement du 2 septembre 2003, Françoise M. / EMI France, Auchan France available at : http://www.legalis.net/jurisprudence-decision.; Tribunal de grande instance de Paris 5ème chambre, 1ère section Jugement du 10 janvier 2006; reversed on appeal on ground of lack of evidence of disfunction of CD on various computers : Cour d'appel de Paris 4ème chambre, section A Arrêt du 20 juin 2007 Fnac Paris / UFC Que Choisir et autres available at : http://www.legalis.net/jurisprudence-decision; confirmed by Cour de cassation 1ère chambre civile 27 novembre 2008 UFC Que Choisir / Fnac, Warner music France, available at: http://www.legalis.net/jurisprudence-decision
4 For a general discussion on consumer law, copyright law and the private copying regimes in Europe, see N.Helberger, & P.B. Hugenholtz, "No place like home for making a copy, private copying in European copyright law and consumer law" (2007) 22 Berkeley Tech. L.J. 1061; for its analysis on the reasonable expectation of consumers, see pp 1084-1089.
5 G. D'Agostino, "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use" (2008) 53 McGill L.J. 309, at 320, also for its analysis of the impact of CCH.
6 Tribunal de Grande Instance de Nanterre 6ème chambre Jugement du 2 septembre 2003, supra note 3. In that case, a consumer protection agency and a named consumer complained that a CD could not be used on car CD players while other CDs could. There was a general notification on the CD of a technological protection measure: « Ce CD contient un dispositif technique limitant les possibilités de copie » (« this CD contains technical measures that limit copying »). This did not prevent the Tribunal from ordering the music distributor EMI France to reimburse the consumer for the CD as well as to cover other costs.
7 Théberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34l, paragraphs 30 and 32; CCH Canadian Ltd. v. Law Society of Upper Canada, supra note 2., paragraph 48.