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Please see (Part 1 and Part 2)

Part 2 ended with the judge suggesting that file-sharing in this case, was not copyright infringement at all…

The Copyright Board of Canada in 2003 amended the Copyright Act’s section on private copying to include language for better definition of an “audio recording medium” and to define levies on the sale of these items. (CBOC, 2003) The point of the Private Copying amendment is to allow an individual to make copies of protected material strictly for their own use, while still paying artists for their work. This money is collected via a levy placed on blank media that is collected by the Canadian Private Copying Collective (CPCC) as royalties.

The CPCC then distributes the monies to copyright holders. The amendment did not discuss the source of the copied material but only the final media holding it, thereby making downloading appear legal under certain circumstances. The WPPT makes available the exclusive right to copy to the copyright holder. This is not a right granted by the Canadian Copyright Act and therefore nothing prevents a person from making as many personal copies as they wish. Based on this, the judge found that since the downloading was for personal use, there was no infringement.

The other important distinction is whether the users had distributed or authorized the reproduction of the materials. The Motions Judged cited a similar case as precedent in his statement. In the case of CCH Canada Ltd. v. Law Society of Canada, 2004, the court found that if a library places a photocopier in the middle of a room containing copyrighted works, the library is not expressly authorizing infringement. Since the users had only placed the files in a shared folder, the element of authorization was missing. Additionally, he found that “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.” (Finckenstein, par. 28)

The judge also noted that under section 27 of the Copyright Act, the user must have knowledge that the copyrighted materials are being copied to constitute infringement. Furthermore, he added that under section 80(1) of the Copyright Act, “downloading a song for personal use does not amount to infringement”. (par. 25) Michael Geist, law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law said, “this appeared to make uploading itself legal as well, since a peer-to-peer user–like a
library–would be entitled to assume that the person on the other side of the connection was acting legally, since downloading was also legal in Canada.” (Borland quoted, 2004)

The decision was reported in the media as a triumph for Internet rights activists and privacy advocates. Canada was proclaimed a haven for piracy and the CRIA vowed to appeal the judge’s ruling.

Read part 4…

Tags: , CBOC, CCA, copyright, CPCC, Digital Music, Geist, WPPT