March 22 2004
Rather than making potential criminals of many Canadians, the Canadian government has implemented legislation stipulating that it is not copyright infringement to copy music onto an audio recording medium for private use. The legislation does not specify the source of the music, which therefore appears to cover any source including the Internet. However, at the same time, the Canadian Copyright Act was further amended to permit the Canadian Copyright Board to impose levies on blank audio recording media. The levies are paid to the Canadian Private Copying Collective which then distributes the funds to eligible authors, performers and producers of recorded musical works.
The exception is limited to "the private use of the person who makes the copy". Therefore, if person A copies music from the Internet for his or her personal use, there is no copyright infringement. However, if person A copies music from the Internet intending to give the copy to a friend, he or she is infringing copyright. Moreover, if person A copies music over the Internet, the person who uploads the music for person A subsequently to copy is arguably infringing copyright.
In a decision rendered by the Canadian Copyright Board on December 12 2003, the board helped to clarify the definition of the term 'audio recording medium'. The board held that blank CDs are covered, but that blank DVDs do not constitute an audio recording medium. It follows that blank DVDs are not subject to a levy, and copying music onto a blank DVD constitutes copyright infringement. The board also imposed a new levy on media in digital audio recorders such as portable MP3 players. However, the levy was only set for recorders that have permanently built-in recording media (eg, internal hard drives). No levy was set on the forms of removable media that are used in many other types of recorders because these are also used in many other devices. The board's decision does not answer the question of whether copyright infringement is deemed to occur when copying music for personal use onto one's own personal computer hard drive. While the levies set down by the board are now firmly in place, the board's comments regarding the legality of internet downloading have yet to be endorsed by the Canadian courts, which are the ultimate authorities on the meaning of the provisions of the Copyright Act, including the provision relied upon by the Copyright Board in its decision. Therefore, while the statements of the board are not binding in any future judicial determination that may take place, they should have persuasive effect. The Canadian Recording Industry Association, which has recently threatened legal action against individual file sharers in Canada, is likely to have to consider the implications of this important Copyright Board decision before formulating any litigation strategy.
For further information on this topic please contact Elliott Simcoe or Philip Lapin at Smart & Biggar/Fetherstonhaugh by telephone (+1 613 232 2486) or by fax (+1 613 232 8440) or by email (firstname.lastname@example.org or email@example.com).
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