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
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
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
(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
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"
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
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
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
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
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
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
Corey Bergstein practices
Intellectual Property Law in Toronto and can be reached at firstname.lastname@example.org.
This Article does not constitute legal advice. The views expressed
are those of the author.