Canadian Intellectual Property Law.

How Downloading Music From The Internet Is Legal In Canada by Corey Bergstein (Published in the National Post on October 29, 2003)

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. There, I've said it! In fact, I'm not the least bit afraid to admit that 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. Well, it all came to a head in the mid 1990's when the Canadian music industry lobby stepped up its complaints that people were getting rich off the illegal copying of music. What people you ask? Bootleggers? Street Vendors? Underground Black Marketeers? No. The people the music industry were after were the likes of Maxell, Fuji, TDK, Sony and all the other blank media producers who were selling millions of dollars worth of cassette tapes onto which all this music was being copied, with the even greater threat of CD-Rs 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 cassette 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 Socitey 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 reproducing 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 follows:

79 "audio recording medium" means 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, who 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. This is, in a very real way, no different from running a needle over a slab of wax or imposing a magnetic impression on a strip of tape. A detailed discussion of the physics behind this process is beyond the scope of this article, suffice to say that the sound recording is reproduced on my hard drive.

Additionally, I would submit that members of the public "ordinarily" use their hard drives to copy music. How many of you reading this have a sound recording on your hard drive right now? It would not be a stretch to say that most of you do. Clearly, this is far from marginal use. Furthermore, the words "regardless of its material form" found in the definition easily broaden the scope of media covered by this definition to include one's hard drive.

Simply because no levy is currently imposed on hard drives doesn't remove such media from inclusion in the construction of section 80. Of course, the ordinary use of a medium to copy sound recordings must necessarily precede the inclusion of that medium in the levy. Also, the fact that certain media are not exclusively used to copy sound recordings is already taken into account in the fixing of the amount of the levy. The Copyright Board has recognized the evolving market for recording medial and has stated that, as of 2001, the data available on the downloading of music from the Internet was too uncertain to be considered in fixing the amount of the levy, "although it could become of central concern in future tariff applications". It reasonably follows that a hard drive is an "audio recording medium".

So, now that I know that I am reproducing a sound recording onto an audio recording medium, the question remains whether I am doing so for my "private use". Basically, "private" use is the opposite of "public" use. The test involves a review of what I am doing with the sound recording I have copied. A private use is one that is made for my own 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, all for the musical benefit of others.

Those of you who know me know that the use to which I put my downloaded sound recordings is home or car listening for my own personal enjoyment. There could not be a clearer private use than that to which I put the music I copy to my hard drive from Internet sources.

But aren't the Internet sources just illegal copies anyway? Isn't that the fruit of the poisonous tree? Well, 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. You see, Parliament was concerned that permitting private copying would lead to the condonation of undesirable conduct. To ensure that we all behave ourselves, the amendments to the Copyright Act included section 80(2) which reads, in part, as follows:

80(2) Subsection (1) does not 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 intent 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" (pronounced "theeeee"). 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 the very least, it must be the primary purpose for making the copy, before the section can be applied to exclude the copying from the benefits of section 80(1).

Before we take a look at the listed purposes, let me first reiterate that my primary purpose for copying sound recordings from the Internet is to listen to them. My secondary purpose would be to burn them to a compact disc so I can listen to them on my home or car stereo and to collect them. Additionally, and for this argument only, lets assume that when I download a sound recording using a file sharing software program such as Kazaa, I permit it be copied into my Shared Folder by default and not some other location. This, however, would be a tertiary purpose at best. This latter factor will be considered in the "distribution" and "communicating by telecommunication" aspects of the purpose analysis.

For those of you unfamiliar with file sharing software such as Kazaa, I note the following. The "Shared Folder" is the name of a location on my computer designated when I installed the Kazaa file sharing software. This is the location to which files are downloaded and from which files are uploaded. Kazaa only searches the Shared Folder and no other locations. On a simplistic view, if two users, say Jeff and Smith, are running Kazaa and Jeff enters a search request, the software will search Smith's Shared Folder for the file to see if there is a match. If there is a match, Jeff will click the matched file and the software will facilitate the downloading of the file from Smith's Shared Folder to Jeff's Shared Folder. If I designated a different location for my downloads or if I continually removed the downloaded files from my Shared Folder such that it was clear of copyrighted material, Kazaa would never find a match by looking in my Shared Folder and no files could be uploaded from my computer. As I said, for now we will assume that I leave all files in my Shared Folder.

Now, lets look at the public purposes listed in section 80(2). The first is selling or renting the sound recording. I can honestly state that 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. Clearly, 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). "Distributing" is not defined in the act. Dictionary.com defines "distributing" as the act of delivering or passing out. This could be broad enough to encompass the giving of one copy of the sound recording to another person by any method. However, all definitions of this term appear to require an affirmative action. The only affirmative 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. I submit that this is insufficient action to constitute "distributing" the copy to others.

However, even if it were to be construed as distributing it to others, permitting the file to be downloaded to my Shared Folder is clearly not my primary purpose for making the copy. Remember, it is the purpose for the making of the copy in the first place that is of concern in section 80(2). My primary purpose in copying the music is to enjoy it myself, not to build a Shared Folder for others to enjoy. Such a cause is merely a tertiary consequence of the copying process. As such, my action is not covered by the prohibited listed purpose of distribution.

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.

Okay, I acknowledge that leaving a copy of a sound recording in my Shared Folder where a member of the public can copy it at his leisure may be construed as a communication to the public by telecommunication of that sound recording. However, as with the case of distributing, even if my actions are a communication to the public, this is clearly not my primary purpose for making the copy in the first place. If Parliament wanted to make it otherwise it would have done so. It did not. As such, my action is not covered by the prohibited listed purpose of communication to the public.

Finally, the fourth listed public purpose is performing the sound recording in public. This would include playing it in a restaurant or nightclub or playing it to a large group of the general public. It would not include playing it to friends at my house. Well, I don't own a restaurant or club and I rarely have a chance to play music for a large audience. I think that its clear that public performances of the music I copy do not occur. As such, my action is not covered by the prohibited listed purpose of public performance.

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.

I must stress that the issues surrounding all of the prohibited listed purposes are heavily dependent upon the particular factual situation and are clearly matters of degree. If the reality of your particular situation is clearly, and on a grand volume, within a prohibited purpose, you may be hard pressed to argue that your primary purpose for making the copies was to listen to them.

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 of his work. Great. However, that does not end the analysis. You see, 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.

As acknowledged above, 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 simply removing any copyrighted files from by Shared Folder immediately after downloading them. In this way, these files are not available for others to download. 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.

But wait! Isn't removing files from my Shared Folder contrary to established file sharing etiquette? If everyone removed their files from their Shared Folder what would be left to download? Well, when such a simple practice is available to permit all Canadians to copy music and avoid breaking the law or infringing another's right, then I suggest that it's a small price to pay. Small indeed, as Canada is but a minute portion of the world downloading community. A portion, however, that can actually download music from the Internet without the guilt of wrongdoing. Unless supply runs out, we might as well lead the world in legal copying. Besides, this is not to say that my Shared Folder is empty. To the contrary, its full of non-copyrighted material for everyone to enjoy, such as my many Phish and Dead concerts I have converted to digital to preserve for future generations and, of course, articles like this one for all of us to ponder.

So, don't fear fellow downloader, downloading music from the Internet for your own enjoyment is presently 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, and although they will never say 'thank you', feel free to say 'you're welcome'!

Corey Bergstein practices Intellectual Property Law in Toronto and can be reached at bergsteins@interlog.com. This Article does not constitute legal advice. The views expressed are those of the author.