Don’t Fear Fellow Downloaders

The following article was copied from the National Post in October 2003. It details one lawyer’s opinion as to why it is legal for Canadians to copy music off the Internet. I would have linked to it instead of copying it down, but I couldn’t find a link anywhere, so here it is:

Why downloading is legal

We already pay for the right to copy music off the Web


I download music from the Internet. I do this without the permission of the owners of the copyrights in either the composition or the recording. I’m not afraid to admit I do it all the time. That’s because there is nothing illegal about what I am doing.

Copying music for the purpose of private use is legal in Canada.

What? you exclaim. The debate over copying music came to a head in the mid 1990s when the Canadian music industry stepped up its complaints that people were getting rich off the practice. Bootleggers? Street Vendors? Black Marketeers? No. The music industry’s targets were Maxell, Fuji, TDK, Sony and all the other companies that make the cassette tapes on to which the music was being copied, with the even greater threat of CD-Rs (recordable CDs) just over the horizon.

So the Canadian government stepped in and granted the music industry’s wish for a levy on Blank Audio Media. Through the levy, we all pay a little bit more for our blank tapes and CD-Rs and the extra funds are distributed to artist members of the various Canadian music industry collectives, such as the Canadian Musical Reproduction Rights Agency (CMRRA) and the Society of Composers, Authors and Music Publishers of Canada (SOCAN).

However, Parliament could not impose a levy (a kind of tax) based on a premise of illegal activity. So, in 1998, simultaneously with the imposition with the levy, the Canadian Copyright Act was amended to provide for the express exclusion of copying for private use from being an infringement of copyright.

That exclusion is now found in section 80 of the Copyright Act and reads, in part: 80(1) Subject to subsection (2), the act of re- producing all or any substantial part of …(c) a sound recording in which a musical work …is embodied, 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 …sound recording.

Let’s look at these sections. The first part of 80(1) is concerned with reproducing a sound recording onto an “audio recording medium.” Since the levy only applies to audio recording media, the exception only applies to copies recorded onto an “audio recording medium.”

Section 79 of the Copyright Act defines “audio recording medium” as “a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose…”

The Canadian Copyright Board, which is responsible for authorizing the amount of the levy, has stated that the term “ordinarily” is used to describe what is ‘regular, normal, average, recurring or consistent’. It goes on to state that “the levy is applicable to recording media, which a non- marginal number of consumers use for private copying in a way that is not marginal.” Well, this obviously covers such media as cassette tapes and blank CDs, but is a computer’s hard drive an “audio recording medium?” Well, no levy is currently imposed against computer hard drives. However, when I download a song from the Internet to my computer, I am physically altering my hard drive with a representation of the sound recording. I may not be able to see this alteration with the naked eye, but that does not change the fact that a physical change occurs. Additionally, I argue that members of the public “ordinarily” use their hard drives to copy music. Simply because no levy is imposed on hard drives doesn’t remove such media from inclusion in the construction of section 80. So, now that I know that I am reproducing a sound recording on to an audio recording medium’ the question remains whether I am doing so for my “private use.”

A private use is one that is made for my personal musical benefit and includes such uses as sitting at home listening to it play on my stereo or on my computer or burning it to a compact disc and playing it in my car for my own personal enjoyment. In contrast, public uses would include playing it in my restaurant or nightclub or burning multiple copies and selling them on the street, none of which I do.

But aren’t the Internet sources just illegal copies? No. Not when Parliament intentionally refused to impose the requirement that the source or target be lawfully owned — a fact confirmed by the Copyright Board.

As a result, when I download music from the Internet, I am making a copy of a sound recording on an audio recording medium for my own private use. As such, section 80(1) of the Copyright Act deems my copying not to constitute an infringement of copyright.

This does not end the section 80 analysis. Parliament was concerned that permitting private copying would lead to the condoning of undesirable conduct. To ensure that we all behave ourselves, the amendments to the Copyright Act included section 80(2) which reads, in part: 80(2) Subsection (1) does riot apply if the act described in that subsection is done for the purpose of doing any of the following …(with the sound recording), (a) selling or renting out …; (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.’

Section 80(2) addresses the in- tent or the purpose for making the copy and excludes certain public intents or purposes from the beneficial protection provided by section 80(1). The key word to focus on in this section is “the”. This section provides that if “the” purpose of making the copy is one of the listed prohibited purposes, then the protection provided by section 80(1) does not apply. I note that it doesn’t say “a” purpose. It doesn’t say “one” purpose. It says ‘the” purpose. As such, Parliament intended that the listed purpose must be the only purpose for making the copy, or at least, it must be the primary purpose for making the copy, be- fore the section can be applied to exclude the copying from the benefits of section 80(1).

Now, let’s look at the public purposes listed in section 80(2). The first is selling or renting the sound recording. I can honestly state I have no interest in selling or renting the sound recordings I download. You won’t find me on the street corner hocking bootleg copies of Bat Out Of Hell or as the proprietor of SoundBuster Music Warehouse. None of my purposes are covered by this first listed public purpose.

The second listed public purpose is “distributing” the sound recording, whether for trade or not (i.e., by sale or gift). The only action that I am taking in this regard is permitting the sound recording file to be downloaded to my Shared Folder from which location others may copy the sound recording. The third listed public purpose is “communicating to the public by telecommunication.” While currently under consideration by the Supreme Court of Canada, it has been held by the Federal Court of Canada that a communication to the public by telecommunication occurs when any member of the public uses a browser to access a work from a source computer.

A work is communicated to the public, even if transmitted only once, when it is made available to, the public on a site accessible to a segment of the public at different times of their choosing.

Finally, the fourth listed public purpose is performing the sound recording in public, not playing it to friends at my house.

Since my acts of downloading music from the Internet are covered by the beneficial protection from infringement set out in section 80(1) and since they are not covered in the limitations found in the public purposes set out in 80(2), I have shown that my actions are not infringements of copyright.

So, I can download music from the Internet for my own private use and not infringe on the copyright owner’s right to prohibit the unauthorized copying oft his work. Great. However, that does not end the analysis. The right to control copying is not the only right granted by the Copyright Act. Among other rights, the Copyright Act also grants the copyright owner the sole right to control the communication of the work to the public by telecommunication.

By leaving files in my Shared Folder, I may be considered to be communicating those files to the public by telecommunication. However, I solve this problem by removing any copyrighted files from my Shared Folder immediately after downloading them. As such, I cannot be said to be communicating them to the public. Thus, I am not infringing on any other right granted to the copyright holder by the Copyright Act.

So, don’t fear, fellow downloader, downloading music from the Internet for your own enjoyment is legal in Canada. Don’t let the Canadian Musical Reproduction Rights Agency, the Recording Industry Association of America, the boys in Metallica or anyone else intimidate you into believing otherwise. Just tell them that it is perfectly legal and that you’ve already paid for it when you bought that last spindle of blank CD-Rs.

Financial Post

Corey Bergstein practices intellectual property law in Toronto

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