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.
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.
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.
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  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.,  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.