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Canada and Copyright
June 16, 2004
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In a global fight between copyright holders and users, the battles in Canada have stood out from the crowd. As a result of various opinions and court decisions, Canadians are one group out of very few who refer to downloading copyrighted music for free as legal.

THE PAST

Many observers of copyright law argue that downloading music from P2P networks has always been legal. The Canadian File-Sharing Legal Information Network, for example, believe that it is permitted under s.80 (1) of the Copyright Act, which provides that anyone can copy music for private use of that person making the copy. Further to this, the law does not specify that the original copy needs to be acquired legally.

File sharers need to be made aware that this section is specific to sound recordings. Unauthorized reproductions of other copyright works, such as films and software, remain unlawful. This has yet to be tested in court.

Mid-December last year, the Copyright Board of Canada agreed with the viewpoint that downloading is legal in Canada. As part of this announcement, the Board also introduced a government fee on a variety of music storage medium and recording equipment. This ranges from the latest iPod to cassette tapes. The money raised is then distributed to copyright holders.

Such a novel step by the copyright regulators was bound to cause controversy. Consumer-electronic sellers complained that sales would fall, copyright owners feared that the piracy floodgates would be opened, and those backing up data criticized the decision for making them pay the music industry.

The downloader’s cause had received some heavy weight backing by the Copyright Board’s opinion, but ultimately it needed to be tested in court. The Canadian Recording Industry Association (CRIA) was the first to highlight that the Copyright Board had only given their opinion, and believed that downloading would be found unlawful by the courts.

Few thought that these legalities of downloading would be tested any time soon. To encourage leeching from P2P networks, the industry had always targeted uploaders.

Consequently, although pleased that downloading appeared lawful, the average file sharer remained more interested in the legal implications of uploading.

THE CASE

Then, on the 31st March 2004, file sharers received a preliminary answer to their question. The industry received their worst possible news. Excitement rippled through the file sharing community.

On that day, Judge Konrad von Finckenstein, the judge at first instance, rejected the CRIA’s motion for the court to authorize the identification of 29 alleged file swappers. Rumors of both uploading and downloading being legal have since been rife.

As part of his statement, Judge Finckenstein agreed with the Canadian Copyright Board that downloading is legal under Section 80 (1) of the copyright act. His clarification of existing belief on downloading was only weakly connected to the case, but it helps to set a precedent.

Judge Finckenstein primarily rejected the CRIA motion due to lack of evidence. It is good news that the court questioned the integrity of the evidence, but this reduces the likelihood of uploading being legal.

Even with future precautions to plug gaps in the evidence, the CRIA will find themselves at a couple of sticking points. The first of these is evidential, the second is legal.

Evidential Issues

It will be very complicated, if not impossible, for the CRIA to prove that there is a connection between the IP address recorded and the alleged file sharer. Firstly, the court found that an IP address can only be linked to an account holder. The account holder may not be the computer operator, but instead a Local Area Network administrator, or an institution. This is additionally complicated by dynamic IP addresses and poor records kept by ISPs.

Although this provides file sharers with an extra layer of protection, it does not mean that uploading is lawful.

Legal Issues

This brings us onto the part file sharers and observers are most interested in – the judge’s ruling on the legality of sharing files.

As part of demonstrating infringement of the Copyright Act, the plaintiff must prove to the court that the defendant authorized reproduction of the sound recordings and distributed the content.

Canada has yet to implement the World Intellectual Property Organization Performances and Phonogram Treaty (WPPT) or the Copyright Treaty (WCT). These treaties were concluded in 1996 and became the basis of the controversial Digital Millennium Copyright Act (DMCA, 1998) in the USA. Canada signed up to the principles of the treaties in 1997, but has yet to ratify them. Had Canada implemented the WPPT, the CRIA would not have needed to proven that authorization and distribution had occurred.

Without implementation of the treaties, Judge Finckenstein turned to case law for guidance, and decided to follow a Supreme Court precedent. In a case involving a photocopier in a library, the Supreme Court judge ruled that setting up the facilities that allow copying does not amount to authorized infringement. Likewise with P2P software, the preconditions for copyright infringement are in place, but authorization is absent.

Judge Finckenstein also concluded that the use of P2P software does not amount to distribution. He argued, “Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. No such evidence was presented by the plaintiffs in this case.”

Finding an omission of authorization and distribution, the judge had no choice but to deny the CRIA’s motion. This is an unmistakable signal from the courts that sharing copyright works on the P2P networks in question is not unlawful. The courts may distinguish networks which use different technology, such as BitTorrent.

THE FUTURE

This is not the end of the story. The flexibility of the law means that Canadians should enjoy the freedom whilst it lasts.

The CRIA have made an appeal against the ruling, which will be heard before a three-judge panel at the Federal Court of Appeal. The grounds for appeal are currently unclear, although it is likely to question the relevance of the Supreme Court decision in this case to establish authorization. The CRIA may also question the judge’s decision that there has been no act to constitute distribution.

By the end of this year, the current arguments are likely to be academic.

Reforming the Copyright Act

Canadian copyright law is under review for reform by Copyright Policy Branch of Canadian Heritage. The consultation paper produced by Canadian Heritage praises the current Copyright Act as a “flexible instrument that is capable of responding to many of the challenges of the digitally networked environment.”

However, the Copyright Act receives much disapproval. Acknowledging that copyright has become an international issue, the Copyright Act is criticized for being out of step with other copyright law. The EU and the USA are named as examples where the WPPT and WCT, spoken about above, have been implemented in order to achieve unison.

If Canada follows suit and implements and ratifies these treaties to achieve harmony, there will be far reaching affects, mostly beyond the scope of this article.

The most important section of the Canadian Heritage consultation paper is section 4.1, titled “Making Available.” This section outlines the board’s support for artists to have a “making available right.” This phrase originally emerged during the WPPT and WCT negotiations. It refers to artist having the exclusive right of when and where to make works available, if at all.

The main potential change to the Copyright Act is discussed in subsection 4.1.1. This section discusses the making available right in context to the music industry. If this right is given to the recording industry, the authorization and distribution tests, which the CRIA failed to meet, will become obsolete.

By sharing copyright works, file sharers will be taking away the industry’s right to chose the distribution of their copyright works, and hence in breach of the Copyright Act.

The consultation paper does not supply any counter arguments to giving a making available right. As such, implementation as part of any reform of the Copyright Act is likely.

The bad news for Canadian file sharers is that this reform is very probable. Concerned citizens who have voiced their opinion about the potential changes in the Copyright Act have been told “that the Government of Canada is committed to modernizing the Copyright Act,” in reply.

BOTTOM LINE

Downloading music in Canada is currently lawful. Uploading music is at present not unlawful, but this is subject to an appeal.

Whatever is decided in the awaited CRIA appeal will only be temporary, as there are forthcoming changes to the Copyright Act. These changes will likely include some ratification with international treaties, including giving the right to the industry for how and where music content is distributed.

If implemented, the current debate of sharing files being unlawful will become obsolete, leaving the courts to debate only evidential issues.


This story is filed in these Slyck News categories
File-Sharing/P2P Related :: International

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