Kara Sears
Canada's copyright laws have evolved over the years, with the current legislation being the Copyright Act of Canada, first passed in 1921 and amended several times, most recently in 2012. The act covers creative and artistic works, including music, videos, and books. There is confusion regarding the legality of file sharing in Canada, particularly with peer-to-peer systems. While some argue that downloading copyrighted music is legal under specific conditions, others claim that uploading music is illegal or, at the very least, a grey area. Canada's copyright laws have been criticised for depriving citizens of their cultural heritage by locking up cultural materials for extended periods. The laws also lack a fair use exemption, which further complicates the issue of file sharing.
| Characteristics | Values |
|---|---|
| File sharing in Canada | Relates to the distribution of digital media in the country |
| File sharing legality | Important distinctions have been made about the legality of downloading vs. uploading copyrighted material |
| Copyrighted material distribution | In general, the unauthorized copying or distribution of copyrighted material for profit is illegal under Canada's Copyright Act |
| Copying for private use | Copying copyrighted sound recordings of musical works for the personal use of the person making the copy does not constitute a violation of the Copyright Act |
| Copyright Act | Grants copyright owners the sole and exclusive right to create or recreate a work, and an exclusive right to ownership |
| Copyright owner rights | Include the right to publish the work, perform it in public, translate and disseminate translations of the work, convert it between artistic mediums, present the work by telecommunication or other means of exhibition, and rent out the work |
| Copyright duration | Works protected by copyright on or after December 30, 2022, will receive an additional 20 years of protection |
| Unlocatable copyright owner | If you cannot find the copyright owner, you may consider applying for an "unlocatable copyright owner" license from the Copyright Board of Canada |
| Copyright registration | In Canada, copyright registrations do not need to be renewed, and the work does not need to be submitted to the Canadian Intellectual Property Office (CIPO) for registration |
| File-sharing lawsuits | In 2005, the Canadian federal government introduced Bill C-60, which would have made the "making available" of copyrighted music files on peer-to-peer systems illegal, but the bill was never passed |
| File-sharing ruling | In 2004, the Federal Court ruled that neither downloading a song for personal use nor making that file available to others for download amounts to infringement under Canadian copyright law |
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What You'll Learn
File-sharing lawsuits in Canada
In 2004, the Canadian Recording Industry Association (CRIA) attempted to take action against 29 individuals with extensive file-sharing activities. However, the Federal Court of Canada and the Federal Court of Appeal ruled that the CRIA's case did not warrant interfering with the defendants' right to privacy. This decision allowed downloading music and placing it in a shared folder available to others online.
In 2005, Justice Konrad von Finckenstein's controversial ruling, which legalised file uploading of sound recordings on peer-to-peer systems, was overturned by the Federal Court of Appeal. The Court acknowledged the need to determine the legality of peer-to-peer file sharing in future cases. As a result, the Canadian federal government introduced Bill C-60, aiming to amend the Copyright Act and explicitly prohibit the "making available" of copyrighted music files on peer-to-peer systems. However, parliament was dissolved before the bill could be passed.
In 2011, the Canadian government reintroduced the Copyright Modernization Act as Bill C-11, which was signed into law in 2012. This act has been amended over time, with Bill C-32 receiving Royal Assent in 1997 and legalising music file sharing for personal use.
Despite these developments, the legality of file sharing in Canada remains a grey area. While downloading copyrighted music for personal use is generally permitted, uploading and distributing copyrighted material for profit is illegal. The distinction between "distribution" and "private copying" is crucial, and the lack of clear boundaries has led to ongoing debates and legal challenges.
Recently, there has been a wave of lawsuits initiated by Hollywood production studios, targeting hundreds of individuals in Canada for allegedly sharing and downloading copyrighted content. These lawsuits have raised concerns among Canadians, highlighting the potential risks and consequences of online file sharing.
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Downloading and uploading copyrighted material
File sharing in Canada relates to the distribution of digital media in the country. In 2004, Canada had the greatest number of file sharers by percentage of the population in the world, according to a report by the OECD. However, in 2009, Canada was found to have only the tenth greatest number of copyright infringements globally, according to a report by BayTSP, a U.S. anti-piracy company.
There are important distinctions to be made about the legality of downloading versus uploading copyrighted material, as well as "musical works" versus other copyrighted material. In general, the unauthorized copying or distribution of copyrighted material for profit is illegal under Canada's Copyright Act. However, the Act also states that copying copyrighted sound recordings of musical works for private use does not constitute an infringement of the copyright in the musical work, the performer's performance, or the sound recording.
In 2005, the Federal Court of Appeal set aside a ruling by Justice Konrad von Finckenstein, which had made the file-uploading of sound recordings on peer-to-peer systems legal. The Court of Appeal held that the original case should be dismissed due to a lack of evidence, but that the question of the legality of peer-to-peer file sharing must be decided in a future case.
In 2005, the Canadian federal government introduced Bill C-60, which would have amended the Copyright Act to make the "making available" of copyrighted music files on peer-to-peer systems illegal. However, parliament was dissolved later that year, and the bill was never passed.
In 2011, the Government of Canada reintroduced the Copyright Modernization Act under the new designation of Bill C-11, which was signed into law in 2012. This Act grew out of a long series of British statutes and common law and has been amended over the years by various Bills passed by the Canadian parliament.
While the laws regarding downloading copyrighted material in Canada are relatively clear, the laws regarding uploading such material are less so. Some sources suggest that uploading copyrighted music is outright illegal, while others maintain that it is a grey area. The Federal Court, in a decision issued by Justice von Finckenstein in 2004, ruled that neither downloading a song for personal use nor making that file available to others to download from your computer (without some more active sharing activity) amounts to infringement under Canadian copyright law. However, this ruling was later set aside by the Federal Court of Appeal, leaving the legality of peer-to-peer file sharing undecided.
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Copyright Modernization Act
Canada's Copyright Modernization Act (CMA) came into force on November 7, 2012, after being signed into law on June 29, 2012. The Act was introduced to address the rapid advancements in the use of digital media and to bring Canada's copyright legislation up to international standards, as set by the World Intellectual Property Organization (WIPO) treaties.
The CMA introduces several exceptions that allow for certain types of copying for private purposes. For example, it is not considered copyright infringement to reproduce a work into another format (format shifting), to reproduce a work for later consumption (time shifting), or to make a backup copy. However, these exceptions come with conditions: the source material must not be infringing, it must have been legally obtained, and a Technological Protection Measure (TPM) must not have been circumvented. Additionally, the copy must not be distributed, sold, or rented.
The CMA also grants performers and record labels an exclusive "making available right," allowing them to control the release of their performances and sound recordings online. This right enables artists to better manage the sharing of their works over peer-to-peer networks and prevent premature releases by retailers.
The Act further clarifies the definitions of "moral rights" and "treaty country" in Section 2 of the Copyright Act, replacing them with WCT country and WPPT country, respectively. These terms refer to countries that are parties to specific WIPO treaties adopted in Geneva on December 20, 1996.
The CMA aims to balance the rights of copyright owners with users' interests, allowing certain activities that would otherwise constitute copyright infringement if they are deemed "fair" under a judicial six-step test and fall within specific purposes, including research, private study, criticism, review, and news reporting.
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Copyright duration
The evolution of copyright duration in Canada is closely tied to its colonial past and subsequent legislative changes. Here is a detailed overview of the development of copyright duration in Canada:
The origins of Canadian copyright law can be traced back to British colonial rule. In 1774, the House of Lords ruled in Donaldson v Beckett that copyright was a statutory creation with a limited duration. This set a precedent for the development of copyright law in Canada.
The first Canadian colonial copyright statute was the Copyright Act of 1832, enacted by the Parliament of the Province of Lower Canada. This act aimed to foster a literary and artistic nation by encouraging literature, bookshops, and the local press. However, its scope was limited to the Province of Lower Canada.
After the reunification of Upper and Lower Canada into the Province of Canada, the 1832 Act was repealed and replaced by the Copyright Act of 1841. This new act granted copyright protection specifically for books, maps, charts, musical compositions, prints, cuts, and engravings. It was a significant step towards establishing clear copyright protections in the colony.
In 1842, the UK Parliament passed its own Copyright Act, which had a significant impact on Canada. This act prohibited the importation and sale of reprints of any book under British copyright that was printed in other countries. As a result, Canadian merchants had to import books from British printers, often at unaffordable prices for Canadian residents.
Canada responded to the 1842 Imperial Act with diplomatic and legislative efforts to protect its emerging print industry. In 1847, Canada passed the Act to Extend the Provincial Copyright Act to Persons Resident in the United Kingdom. This act granted protection to British authors only if their works were printed and published in the Province of Canada. The British government later denounced this act, creating tensions between the two nations over copyright legislation.
In 1867, the British North America Act granted the federal government of the newly formed Canada the power to legislate on matters of copyright and patents. The following year, in 1868, the Parliament of Canada passed its own Copyright Act, protecting the works of "any person resident in Canada, or any person being a British subject, and resident in Great Britain or Ireland." This act re-established the publication requirements from the 1847 statute, once again highlighting the ongoing disputes between Canada and Britain over copyright jurisdiction.
Canada continued to refine its copyright laws to support its domestic industries and navigate its relationship with British imperial copyright law. While the specifics of copyright duration may have evolved over time, these historical developments laid the foundation for modern Canadian copyright legislation and its unique context within the broader framework of colonial legal influences.
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Fair dealing
The concept of "fair dealing" is a statutory exception to copyright infringement in Canada, providing a balance between the rights of creators and users. It allows limited use of copyrighted material without requiring permission from the copyright owner. This means that, under certain circumstances, it is legal to copy and share copyrighted works without the owner's consent.
The fair dealing exception was first introduced in the 1921 Copyright Act of Canada, which has been amended several times since. The most recent amendment, the 2012 Copyright Modernization Act, added education, parody, and satire to the list of fair dealing purposes, which already included research, private study, criticism, review, and news reporting.
To qualify as fair dealing, the use of copyrighted material must meet specific criteria. Firstly, it must fall under one of the enumerated purposes in sections 29, 29.1, or 29.2 of the Copyright Act of Canada. These purposes include research, private study, education, parody, satire, criticism, review, and news reporting. Secondly, the dealing must be considered fair according to the criteria established by the Supreme Court of Canada. The Court has established a two-part, six-factor test to determine whether a use is fair, ensuring a balance between the rights of owners and users.
The concept of fair dealing recognises that copyright-protected works can be copied, transformed, and shared in ways that further the purpose of copyright. It permits unauthorised copying when such activities legitimately pursue free expression or promote creativity and progress, while also ensuring a just reward for copyright owners. This interpretation of fair dealing has been supported by Canadian court decisions, which have emphasised the need for a large and liberal interpretation of the fair dealing purposes to protect users' rights.
While fair dealing provides some flexibility in the use of copyrighted material, it is important to note that the unauthorised copying or distribution of copyrighted material for profit is generally illegal under Canada's Copyright Act. Additionally, the act of uploading copyrighted material may be considered a grey area, with varying interpretations depending on legal experts.
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Frequently asked questions
File sharing in Canada is a legal grey area. While the Federal Court ruled in 2004 that downloading a song for personal use is not illegal, the Federal Court of Appeal set aside this ruling in 2005, leaving the question of the legality of peer-to-peer file sharing unanswered. However, the unauthorized distribution of copyrighted material for profit is illegal under Canada's Copyright Act.
Copyright infringement in Canada occurs when an individual or entity other than the copyright owner reproduces, shares, performs in public, translates, adapts, presents via telecommunication, or rents out a substantial portion of a copyright-protected work without permission.
The penalties for copyright infringement in Canada can vary depending on the nature and severity of the infringement. Individuals found guilty of copyright infringement may face civil or criminal penalties, including monetary damages, injunctions, and even criminal charges in some cases.
To obtain permission to use copyrighted material in Canada, you must first locate and contact the copyright owner. If the copyright owner cannot be found, you may consider applying for an "unlocatable copyright owner" license from the Copyright Board of Canada. It is important to document your efforts to locate and obtain permission from the copyright owner.
