There is a common claim you will hear in Canada about music
filesharing: that the “private copying” regime makes it all legal in
Canada. There was a comment to this effect in this blog after an article where I described how the recording industry has thus far chosen not to sue people for infringement in Canada.
While I am not a lawyer (IANAL), and nobody knows for certain what a
court will say until after they have said it, all evidence I have seen
(the law itself and related court cases) suggests that those who think
that unauthorized filesharing (of music or non-music) is currently
non-infringing in Canada are working only on wishful thinking.
Here is how the theory often goes: if you go to a friends house and
access their music library to make a mixed tape/CD/etc, then section 80
of the current Canadian copyright act says that your activity is not
infringing.
Section 80 says:
“80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of
(a) a musical work embodied in a sound recording,
(b) a performer’s performance of a musical work embodied in a sound recording, or
(c) a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied
onto an audio recording medium for the private use of the person
who makes the copy does not constitute an infringement of the copyright
in the musical work, the performer’s performance or the sound recording.“
The theory then states that if you go home and access your friends
computer over some form of communications network (Internet, whatever)
then you are doing the same thing.
Fair enough — you may be doing the same thing. But what about your friend?
In the first scenario they were not doing any of the activities which copyright requires permission or payment. (See section 3, section 15, section 18 and section 19, or secondary infringement in section 27).
In the second scenario their computer is sending the file to you,
which is an activity that is covered either as a “communication by
telecommunications”, a “distribution of the work”, or maybe both.
There is debate about whether what you friend is doing is a
“communication by telecommunications” (which would be under a
compulsory license for performers and makers under section 19, but not
composers) or a “distribution” (part of contributory infringement), but
there is little debate that what your friend is doing by sending the
music to you without permission/payment would be found to be infringing
by a court.
The distinction between communication and distribution is very
important for each of the relevant copyright holders, as it determines
whether permission is required or just payment, and whether they need
to prove that distribution was “to such an extent as to affect
prejudicial the owner of the copyright”. It isn’t as important for your
friend knowing whether their activity will be found infringing of
someones copyright in court, or knowing that the damages could be quite
costly.
For those who may not have realized this, there are 3 relevant
copyright holders for recorded music: the composer of the music, the
performer and the “maker” of the recording. Recorded music isn’t like a
book where there may be a single copyright holder. Then again, most
works under copyright are different than each other, which is why it
doesn’t make sense to forget about all these different circumstances
when debating and modifying copyright law.
In addition to the above, any private copying of the music which
your friend did would not be covered once they shared it with you.
The second half of section 80 says:
“(2) Subsection (1) does not apply if the act described in that
subsection is done for the purpose of doing any of the following in
relation to any of the things referred to in paragraphs (1)(a) to (c):
(a) selling or renting out, or by way of trade exposing or offering for sale or rental;
(b) distributing, whether or not for the purpose of trade;
(c) communicating to the public by telecommunication; or
(d) performing, or causing to be performed, in public.“
Why understanding the current situation is important
It is quite dangerous for people to be mislead into believing that
the current Canadian copyright act doesn’t consider unauthorized
sharing to be infringing. It is misinformation that can get these
people into trouble under current law. It is also misinformation that
is being abused by the lobbyist from the recording industry to scare
politicians into making draconian changes to the copyright act.
The push to pass Bill C-61 or similar bills would not be as
effective if politicians realized that unauthorized P2P filesharing of
music is already illegal under our current copyright act.
The person who commented recently also suggested that, “This has been defended in the highest courts of our country and upheld.”
I am not sure where this idea came from. It sounds like an authoritative statement, but it is not.
The Supreme Court of Canada, the highest court in Canada, has not ruled on this issue at all.
The Federal Court of Canada and the Federal Appeals Court both ruled
in BMG vs. Doe that BMG did not provide enough evidence of infringing
activities in that case to grant a court order allowing and obligating
the ISPs to disclose the names of the potential infringers. Neither
case suggested that unauthorized sharing was non-infringing in Canada,
as anyone who takes the time to read the decisions can confirm for
themselves.
- Federal Court - BMG Canada Inc. v. John Doe
- Federal Court of Appeal - BMG Canada Inc. v. John Doe
Links to other recent copyright related cases are included in our chronology of Canadian copyright law.
What does C-61 change for music filesharing
While I believe that unauthorized sharing of music would be found
infringing under current law, there are also changes proposed in Bill C-61 that will affect this unauthorized sharing.
There are additional activities being added to section 15 (rights of performers) which would include:
“(d) to communicate to the public by telecommunication a sound
recording of it in a way that allows a member of the public to access
it from a place and at a time individually chosen by that member of the
public; and”
There are additional activities being added under section 18 (rights of sound recording makers) which would include:
“(a) to communicate it to the public by telecommunication in a
way that allows a member of the public to access it from a place and at
a time individually chosen by that member of the public; and”
In that scenario involving your friend sharing music with you
online, this clarifies any doubt that what your friend would be doing
requires permission of the performer and the maker of the sound
recording. For the composer they would be relying on section 3 which
currently simply says, “(f) in the case of any literary, dramatic,
musical or artistic work, to communicate the work to the public by
telecommunication,” which has generally been understood to include
on-demand communications.
The key change from the perspective of the copyright holders is that
on-demand (like P2P, websites, etc) requires permission from the
performers and makers, rather than just payment (right of remuneration)
like radio.
The other important change for your friend is under statutory damages. The current section 38.1 of the act says:
“(2) Where a copyright owner has made an election under
subsection (1) and the defendant satisfies the court that the defendant
was not aware and had no reasonable grounds to believe that the
defendant had infringed copyright, the court may reduce the amount of
the award to less than $500, but not less than $200.“
The proposal is to change this to:
“(1.1) If a copyright owner has made an election under subsection
(1), a defendant who is an individual is liable for statutory damages
of $500 in respect of all the defendant’s infringements that were done
for the defendant’s private purposes and that are involved in the
proceedings.
(1.2) However, the copyright owner may not recover statutory
damages from a defendant referred to in subsection (1.1) in respect of
the defendant’s infringements that
(a) were done for the defendant’s private purposes before the institution of the proceedings in which the election was made; and
(b) are not involved in those proceedings.
(1.3) If a copyright owner has made an election under subsection
(1) in respect of a defendant referred to in subsection (1.1), no other
copyright owner may elect statutory damages in respect of that
defendant for the defendant’s infringements that were done for the
defendant’s private purposes before the institution of the proceedings
in which the election was made.
(1.4) Subsections (1.1) to (1.3) do not apply with respect to
infringements that were made possible because the defendant
circumvented or caused to be circumvented a technological measure that
protected the work or other subject-matter, within the meanings of the
definitions “circumvent” and “technological measure” in section 41.
(2) If subsection (1.1) does not apply and the defendant
satisfies the court that the defendant was not aware and had no
reasonable grounds to believe that the defendant had infringed
copyright, the court may reduce the amount of an award under subsection
(1) to less than $500, but not less than $200.
“
This would mean that rather than your friend being liable for a
minimum of $200 per infringing file, per copyright holder who joins the
lawsuit (possibly 3 per file), you would only be liable for $500 total
(all copyright holders, all files involved in that proceeding). The
situation reverts back to massive damages if your friend circumvented a
“technological measure”. In the unlikely scenario that a court is
satisfied that your friend is unaware that the activity was infringing,
the $500 could be reduced.
