There is a common claim you will hear in Canada about musicfilesharing: that the “private copying” regime makes it all legal inCanada. 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 acourt will say until after they have said it, all evidence I have seen(the law itself and related court cases) suggests that those who thinkthat unauthorized filesharing (of music or non-music) is currentlynon-infringing in Canada are working only on wishful thinking.

Here is how the theory often goes: if you go to a friends house andaccess their music library to make a mixed tape/CD/etc, then section 80of the current Canadian copyright act says that your activity is notinfringing.

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 personwho makes the copy does not constitute an infringement of the copyrightin the musical work, the performer’s performance or the sound recording.

The theory then states that if you go home and access your friendscomputer 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 bytelecommunications”, 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 acompulsory license for performers and makers under section 19, but notcomposers) or a “distribution” (part of contributory infringement), butthere is little debate that what your friend is doing by sending themusic to you without permission/payment would be found to be infringingby a court.

The distinction between communication and distribution is veryimportant for each of the relevant copyright holders, as it determineswhether permission is required or just payment, and whether they needto prove that distribution was “to such an extent as to affectprejudicial the owner of the copyright”. It isn’t as important for yourfriend knowing whether their activity will be found infringing ofsomeones copyright in court, or knowing that the damages could be quitecostly.

For those who may not have realized this, there are 3 relevantcopyright holders for recorded music: the composer of the music, theperformer and the “maker” of the recording. Recorded music isn’t like abook where there may be a single copyright holder. Then again, mostworks under copyright are different than each other, which is why itdoesn’t make sense to forget about all these different circumstanceswhen debating and modifying copyright law.

In addition to the above, any private copying of the music whichyour 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 thatsubsection is done for the purpose of doing any of the following inrelation 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 thatthe current Canadian copyright act doesn’t consider unauthorizedsharing to be infringing. It is misinformation that can get thesepeople into trouble under current law. It is also misinformation thatis being abused by the lobbyist from the recording industry to scarepoliticians into making draconian changes to the copyright act.

The push to pass Bill C-61 or similar bills would not be aseffective if politicians realized that unauthorized P2P filesharing ofmusic 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 ruledin BMG vs. Doe that BMG did not provide enough evidence of infringingactivities in that case to grant a court order allowing and obligatingthe ISPs to disclose the names of the potential infringers. Neithercase suggested that unauthorized sharing was non-infringing in Canada,as anyone who takes the time to read the decisions can confirm forthemselves.

  • 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.



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