File sharing in Canada
Encyclopedia
File sharing in Canada relates to the distribution of digital media in that country. Canada
had the greatest number of file sharers
by percentage of population in the world according to a 2004 report by the OECD. In 2009 however it was found that Canada had only the tenth greatest number of copyright infringements in the world according to a report by BayTSP
, a U.S. anti-piracy company. On a per capita basis this puts Canada's infringing behaviour at only about 15% of, for example, Spain who ranked first in the study. These two facts together would suggest that Canada is at the forefront of using file sharing for non-infringing uses and that copyright
infringing file sharing in Canada is a small issue relative to many other countries.
While the unauthorized copying - uploading - of complete copyrighted works such as books, movies, or software is illegal under the Act, the situation regarding music files is more complex, due to the Private Copying exemption.
First, to qualify as Private Copying, the copy must be made onto an "audio recording medium". However, there remains some controversy as to whether certain things such as digital music players, or computer hard drives, constitute audio recording media. In 2003, the Copyright Board introduced levies of up to $25 on non-removable memory in digital music players such as the iPod. However, this was struck down when the Federal Court of Appeal ruled that memory permanently embedded in digital music players could not be considered an audio recording medium. The court also gave the opinion that a digital music player, as an entire unit or device, could not be considered an audio recording medium. However, the Copyright Board disputes the latter, and maintains that "it is not settled law that a digital audio recorder is not a medium". Copying onto an audio recording medium for which no levy is currently charged still qualifies under the Private Copying exemption: "For instance, simply because the Board has not been asked to certify a tariff on hard disks in personal computers, it does not follow that private copies made onto such media infringe copyright."
The application of the Private Copying exemption to copies made via the Internet is also a complex issue. Prior to 2004, some analysts believed that it was legal to download music, but not to upload it.
For a brief period in 2004/2005, the sharing of copyrighted music files via peer-to-peer online systems was explicitly legal, due to a decision by the Federal Court, in BMG Canada Inc. v. John Doe
. Under certain conditions both downloading and uploading were held to be legal. Specifically, paragraphs [24] and [25] of the decision stated that Section 80(1) of the Copyright Act allows downloading of musical works for personal use. This section specifically applied to musical works and therefore the decision made no determination as to the legality of downloading other forms of copyrighted works.
Paragraphs [26] to [28] of the decision also made a ruling on uploading, stating that
However, the case was appealed, and on May 19, 2005, this section of the decision was set aside by the Federal Court of Appeal. The appeals court dismissed the case, primarily due to lack of evidence linking the unnamed defendants to the alleged copyright infringement. However, it held that it was inappropriate for the original trial court judge to have ruled on the question of whether making music files available on peer-to-peer file sharing systems constitutes "distribution" (illegal under the Copyright Act) or simply facilitates "private copying" (legal under the Act) at that point in the proceedings. The appeals court specifically left open the possibility of future lawsuits, wherein the question of the legality of peer-to-peer sharing could be addressed. So far, no further such lawsuits have been filed in Canada, leaving it an open question.
In June 2005, the Liberal Party of the federal government introduced Bill C-60
, which would amend the Copyright Act to, among other things, specifically make the "making available" of copyrighted music files on peer-to-peer systems illegal. However, parliament was dissolved later that year due to a non-confidence motion, and the bill was never passed.
A new copyright bill was expected to be introduced by the current Conservative Party government before the end of 2007. It was expected to have much stronger protections for copyright owners, including some provisions similar to the American DMCA. However, due to massive public outcry in the days leading up to the bill's expected introduction, the government delayed its introduction. Just before the end of the second session of the 39th Canadian Parliament
, the Conservative government introduced Bill C-61. Bill C-61 was superseded by Bill C-32 (40th Canadian Parliament, 3rd Session)
, which was introduced into Parliament on June 2, 2010.
and the Imperial Copyright Act. It was first consolidated into one Canadian statute in 1921, the Copyright Act of Canada
. The Act has been amended over the years by various Bills passed by the Canadian parliament.
is a regulatory body empowered to establish the amounts and kinds of levies to be charged on blank audio media under the Private Copying section of the Copyright Act. On December 12, 2003, it released a decision setting the levies to be charged for 2003 and 2004. In relation to this, it also commented in response to queries that were made regarding the legality of P2P
file sharing. The Copyright Board gave the opinion that Private Copying of copyrighted sound recordings for one's personal use was legal, irrespective of the source of that material. Users of P2P networks were thus clear of liability for copyright violations for any music file downloading activity. The decision noted that distributing music online was expressly excluded from the Private Copying exception, and it associated the word "uploading" with the act of distribution.
The Copyright Board is not a court, and its opinion regarding the legality of downloading was publicly disputed by the Canadian Recording Industry Association. However, this decision was thought to be significant in that it provided guidance for court rulings on file sharing in the future.
(CRIA) was dealt a blow in its bid to take action against 29 internet users with extensive file sharing activities. The CRIA filed suit to have the ISPs reveal the identities of the 29 file sharers. In the ruling, both the Federal Court of Canada and the Federal Court of Appeal judged that the CRIA's case was not strong enough to support interfering with the defendants right to privacy and questioned whether the CRIA had a copyright case at all based on its evidence. Because the ISPs were not required to reveal the identities of their clients, the CRIA could not go on to sue the file sharers in a manner mimicking the RIAA's legal proceedings in the U.S.A. The court further found that both downloading music and putting it in a shared folder available to other people online were legal in Canada. This decision dealt a major blow to attempts by the CRIA to crack down on file sharers.
successfully took Demonoid
offline, the Royal Canadian Mounted Police
(RCMP) made it clear that pursuing Demonoid’s users is not a priority for them. Demonoid came back online in April 2008, but is now hosted in Ukraine.
According to the RCMP it is impossible to track down who uploads music or movies to the Internet. The police simply do not have the time nor the resources to go after file sharers. "Piracy for personal use is no longer targeted", said Noël St-Hilaire, head of copyright theft investigations of the RCMP in an interview with Le Devoir
. St-Hilaire explained that they would rather focus on crimes that actually hurt consumers such as copyright violations related to medicine and electrical appliances, as well as ones that affect organized crime.
, according to a report released in April 28, 2010 by the International Federation of the Phonographic Industry. The official synopsis said
In 2011, a report by the International Intellectual Property Alliance
said
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
had the greatest number of file sharers
File sharing
File sharing is the practice of distributing or providing access to digitally stored information, such as computer programs, multimedia , documents, or electronic books. It may be implemented through a variety of ways...
by percentage of population in the world according to a 2004 report by the OECD. In 2009 however it was found that Canada had only the tenth greatest number of copyright infringements in the world according to a report by BayTSP
BayTSP
Irdeto Intelligence is a copyright enforcement company based in Los Gatos, California. Irdeto Intelligence was formed by CEO Mark M. Ishikawa and offers defensive services to owners of intellectual property concerned about potential unauthorized distribution through the Internet...
, a U.S. anti-piracy company. On a per capita basis this puts Canada's infringing behaviour at only about 15% of, for example, Spain who ranked first in the study. These two facts together would suggest that Canada is at the forefront of using file sharing for non-infringing uses and that copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
infringing file sharing in Canada is a small issue relative to many other countries.
Legality
Important distinctions have been made about the legality of downloading versus uploading copyrighted material as well as "musical works" versus other copyrighted material. In general, the unauthorized copying or distribution of copyrighted material for profit is illegal under Canada's Copyright Act., however the act also states under the section "Copying for Private Use ... 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.". Furthermore, the Act contains a Private Copying exception that makes it legal to copy a sound recording onto an "audio recording medium" for the personal use of the person making the copy. This is supported by a levy on blank audio recording media, which is distributed to record labels and musicians.While the unauthorized copying - uploading - of complete copyrighted works such as books, movies, or software is illegal under the Act, the situation regarding music files is more complex, due to the Private Copying exemption.
First, to qualify as Private Copying, the copy must be made onto an "audio recording medium". However, there remains some controversy as to whether certain things such as digital music players, or computer hard drives, constitute audio recording media. In 2003, the Copyright Board introduced levies of up to $25 on non-removable memory in digital music players such as the iPod. However, this was struck down when the Federal Court of Appeal ruled that memory permanently embedded in digital music players could not be considered an audio recording medium. The court also gave the opinion that a digital music player, as an entire unit or device, could not be considered an audio recording medium. However, the Copyright Board disputes the latter, and maintains that "it is not settled law that a digital audio recorder is not a medium". Copying onto an audio recording medium for which no levy is currently charged still qualifies under the Private Copying exemption: "For instance, simply because the Board has not been asked to certify a tariff on hard disks in personal computers, it does not follow that private copies made onto such media infringe copyright."
The application of the Private Copying exemption to copies made via the Internet is also a complex issue. Prior to 2004, some analysts believed that it was legal to download music, but not to upload it.
For a brief period in 2004/2005, the sharing of copyrighted music files via peer-to-peer online systems was explicitly legal, due to a decision by the Federal Court, in BMG Canada Inc. v. John Doe
BMG Canada Inc. v. John Doe
BMG Canada Inc. v. John Doe, aff'd , is an important Canadian copyright law, file-sharing, and privacy case, where both the Federal Court of Canada and the Federal Court of Appeal refused to allow the Canadian Recording Industry Association and several major record labels to obtain the subscriber...
. Under certain conditions both downloading and uploading were held to be legal. Specifically, paragraphs [24] and [25] of the decision stated that Section 80(1) of the Copyright Act allows downloading of musical works for personal use. This section specifically applied to musical works and therefore the decision made no determination as to the legality of downloading other forms of copyrighted works.
Paragraphs [26] to [28] of the decision also made a ruling on uploading, stating that
The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. 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.
However, the case was appealed, and on May 19, 2005, this section of the decision was set aside by the Federal Court of Appeal. The appeals court dismissed the case, primarily due to lack of evidence linking the unnamed defendants to the alleged copyright infringement. However, it held that it was inappropriate for the original trial court judge to have ruled on the question of whether making music files available on peer-to-peer file sharing systems constitutes "distribution" (illegal under the Copyright Act) or simply facilitates "private copying" (legal under the Act) at that point in the proceedings. The appeals court specifically left open the possibility of future lawsuits, wherein the question of the legality of peer-to-peer sharing could be addressed. So far, no further such lawsuits have been filed in Canada, leaving it an open question.
In June 2005, the Liberal Party of the federal government introduced Bill C-60
Bill C-60
Bill C-60 was a proposed law to amend the Canadian Copyright Act initiated by the Government of Canada in the First Session of the Thirty-Eighth Parliament...
, which would amend the Copyright Act to, among other things, specifically make the "making available" of copyrighted music files on peer-to-peer systems illegal. However, parliament was dissolved later that year due to a non-confidence motion, and the bill was never passed.
A new copyright bill was expected to be introduced by the current Conservative Party government before the end of 2007. It was expected to have much stronger protections for copyright owners, including some provisions similar to the American DMCA. However, due to massive public outcry in the days leading up to the bill's expected introduction, the government delayed its introduction. Just before the end of the second session of the 39th Canadian Parliament
39th Canadian Parliament
The 39th Canadian Parliament was in session from April 3, 2006 until September 7, 2008. The membership was set by the 2006 federal election on January 23, 2006, and it has changed only somewhat due to resignations and by-elections...
, the Conservative government introduced Bill C-61. Bill C-61 was superseded by Bill C-32 (40th Canadian Parliament, 3rd Session)
Bill C-32 (40th Canadian Parliament, 3rd Session)
Bill C-32, An Act to amend the Copyright Act, was a bill tabled on June 2, 2010 during the third session of the 40th Canadian Parliament by Minister of Industry Tony Clement and by Minister of Canadian Heritage James Moore....
, which was introduced into Parliament on June 2, 2010.
1921: Copyright Act of Canada
Copyright law in Canada grew out of a long series of British statutes and common law, including the Statute of AnneStatute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
and the Imperial Copyright Act. It was first consolidated into one Canadian statute in 1921, the Copyright Act of Canada
Copyright Act of Canada
Copyright Act of Canada is Canada's federal statute governing copyright law in Canada. The Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988 and 1997. In 2005 an attempt to amend the Canadian Copyright Act was made but Bill C-60 did not pass into law before...
. The Act has been amended over the years by various Bills passed by the Canadian parliament.
1997: Bill C-32
Bill C-32, which received Royal Assent in 1997, amended the Copyright Act of Canada. Among the changes was a provision that legalized music file sharing under certain conditions. The provision states that copying copyrighted sound recordings of musical works for the personal use of the person making the copy, does not constitute a violation of the copyright of that work.2003: Copyright Board of Canada and P2P filesharing
The Copyright Board of CanadaCopyright Board of Canada
The Copyright Board of Canada is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collective-administration society...
is a regulatory body empowered to establish the amounts and kinds of levies to be charged on blank audio media under the Private Copying section of the Copyright Act. On December 12, 2003, it released a decision setting the levies to be charged for 2003 and 2004. In relation to this, it also commented in response to queries that were made regarding the legality of P2P
Peer-to-peer file sharing
P2P or Peer-to-peer file sharing allows users to download files such as music, movies, and games using a P2P software client that searches for other connected computers. The "peers" are computer systems connected to each other through internet. Thus, the only requirements for a computer to join...
file sharing. The Copyright Board gave the opinion that Private Copying of copyrighted sound recordings for one's personal use was legal, irrespective of the source of that material. Users of P2P networks were thus clear of liability for copyright violations for any music file downloading activity. The decision noted that distributing music online was expressly excluded from the Private Copying exception, and it associated the word "uploading" with the act of distribution.
The Copyright Board is not a court, and its opinion regarding the legality of downloading was publicly disputed by the Canadian Recording Industry Association. However, this decision was thought to be significant in that it provided guidance for court rulings on file sharing in the future.
2004: BMG Canada Inc. v. John Doe
In 2004, the Canadian Recording Industry AssociationCanadian Recording Industry Association
Music Canada is a Toronto-based, non-profit trade organization that was founded 9 April 1963 to represent the interests of companies that record, artists, manufacture, production, promotion and distribution of music in Canada...
(CRIA) was dealt a blow in its bid to take action against 29 internet users with extensive file sharing activities. The CRIA filed suit to have the ISPs reveal the identities of the 29 file sharers. In the ruling, both the Federal Court of Canada and the Federal Court of Appeal judged that the CRIA's case was not strong enough to support interfering with the defendants right to privacy and questioned whether the CRIA had a copyright case at all based on its evidence. Because the ISPs were not required to reveal the identities of their clients, the CRIA could not go on to sue the file sharers in a manner mimicking the RIAA's legal proceedings in the U.S.A. The court further found that both downloading music and putting it in a shared folder available to other people online were legal in Canada. This decision dealt a major blow to attempts by the CRIA to crack down on file sharers.
2005: BMG Canada Inc. v. John Doe - Appeal
In 2005, the controversial ruling of Justice Konrad von Finckenstein, making file uploading of sound recordings on peer-to-peer systems legal, was set aside by the Federal Court of Appeal. The Court of Appeal held that although the original case should be dismissed due to lack of evidence linking the unnamed defendants to the alleged copyright infringements, the question of the legality of peer-to-peer file sharing must be decided in a future case.2007: RCMP toleration for personal and non-profit use
Around the same time that the CRIACanadian Recording Industry Association
Music Canada is a Toronto-based, non-profit trade organization that was founded 9 April 1963 to represent the interests of companies that record, artists, manufacture, production, promotion and distribution of music in Canada...
successfully took Demonoid
Demonoid
Demonoid is a website and BitTorrent tracker created by an anonymous Serb known only by the pseudonyms "Deimos" and "Zajson". The website indexes torrents uploaded by its members. Demonoid.com was ranked the 538th most popular website overall in December 2010, according to Alexa. Demonoid's torrent...
offline, the Royal Canadian Mounted Police
Royal Canadian Mounted Police
The Royal Canadian Mounted Police , literally ‘Royal Gendarmerie of Canada’; colloquially known as The Mounties, and internally as ‘The Force’) is the national police force of Canada, and one of the most recognized of its kind in the world. It is unique in the world as a national, federal,...
(RCMP) made it clear that pursuing Demonoid’s users is not a priority for them. Demonoid came back online in April 2008, but is now hosted in Ukraine.
According to the RCMP it is impossible to track down who uploads music or movies to the Internet. The police simply do not have the time nor the resources to go after file sharers. "Piracy for personal use is no longer targeted", said Noël St-Hilaire, head of copyright theft investigations of the RCMP in an interview with Le Devoir
Le Devoir
Le Devoir is a French-language newspaper published in Montreal and distributed in Quebec and the rest of Canada. It was founded by journalist, politician, and nationalist Henri Bourassa in 1910....
. St-Hilaire explained that they would rather focus on crimes that actually hurt consumers such as copyright violations related to medicine and electrical appliances, as well as ones that affect organized crime.
Criticism
In 2009, Canada's music sales went down by 7.4%, second only to SpainSpain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
, according to a report released in April 28, 2010 by the International Federation of the Phonographic Industry. The official synopsis said
In 2011, a report by the International Intellectual Property Alliance
International Intellectual Property Alliance
The International Intellectual Property Alliance , formed in 1984, is a private sector coalition of seven trade associations representing U.S...
said
See also
- File sharingFile sharingFile sharing is the practice of distributing or providing access to digitally stored information, such as computer programs, multimedia , documents, or electronic books. It may be implemented through a variety of ways...
- Peer-to-peerPeer-to-peerPeer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
- BMG Canada Inc. v. John DoeBMG Canada Inc. v. John DoeBMG Canada Inc. v. John Doe, aff'd , is an important Canadian copyright law, file-sharing, and privacy case, where both the Federal Court of Canada and the Federal Court of Appeal refused to allow the Canadian Recording Industry Association and several major record labels to obtain the subscriber...
- Copyright Board of CanadaCopyright Board of CanadaThe Copyright Board of Canada is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collective-administration society...
- Copyright Act of CanadaCopyright Act of CanadaCopyright Act of Canada is Canada's federal statute governing copyright law in Canada. The Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988 and 1997. In 2005 an attempt to amend the Canadian Copyright Act was made but Bill C-60 did not pass into law before...
- Disk sharing
- File sharing timelineFile sharing timelineThis is a timeline of events in the history of file sharing.-Before 1970s:* Punched tape used to as data storage device for CNC machines and Teleprinter communication...
- File-sharing program
- Open Music ModelOpen Music ModelThe Open Music Model is an economic and technological framework for the recording industry based on research conducted at the Massachusetts Institute of Technology...
- WarezWarezWarez refers primarily to copyrighted works distributed without fees or royalties, and may be traded, in general violation of copyright law. The term generally refers to unauthorized releases by organized groups, as opposed to file sharing between friends or large groups of people with similar...
- Bill C-32Bill C-32 (40th Canadian Parliament, 3rd Session)Bill C-32, An Act to amend the Copyright Act, was a bill tabled on June 2, 2010 during the third session of the 40th Canadian Parliament by Minister of Industry Tony Clement and by Minister of Canadian Heritage James Moore....
- Bill C-61, a now defunct controversial Canadian copyright reform bill.
External links
- THE STATE OF FILE SHARING AND CANADIAN COPYRIGHT LAW — the legal status of filesharing