"Electronic medium ... the Final Frontier. These are the voyages of the starship Canadian Copyright Law. Its mission: to attempt to recognize and enforce copyright in strange new, electronic worlds; to seek out new law; to boldly go where no legislator has gone before."

When law first evolved on this planet, it was mostly an articulation of obvious prohibitions: thou shalt not murder, prohibiting child sexual abuse and incest; thou shalt not steal or covet thy neighbour's wife. These basic rules evolved in the English countries, into something called common law.

When man first started inventing things, the law makers sighed a collective "big deal", essentially abandoning the inventor to the pillage of competitors.

Stir in a bit of money, add some water and an egg and let sit for five minutes and .... someone figured out that to foster creativity, creators ought to have a period of exclusive ownership of their creation.

Copyright worked well from Shakespeare to Led Zeppelin but when someone discovered how to reduce audio to digital form, all hell broke loose. Corporate corpses began to collect by the roadside as copyright struggled to keep up with the copyright wild west: Napster, Morpheus, Grokster, Kazaa, Gnutella, Limewire, Bittorrent.

In Canada, as of March 1998, law-makers developed a novel regime, one which has not met with much enthusiasm internationally but which does provide a level playing field in the True North.

mp3 player CanadaSimply put, downloading a song for personal or the copying of recorded music for private use no longer amounts to copyright infringement.1

The legal trade-off is set out at §80 and 82 of the Copyright Act. First, 82:

"Every person who, for the purpose of trade, manufactures a blank audio recording medium in Canada or imports a blank audio recording medium into Canada is liable ... to pay a levy to the collecting body on selling or otherwise disposing of those blank audio recording media in Canada."

Simple enough; a dedicated tax and in turn, that levy is pooled and then distributed to performing artists. For example, as of 2010, every Canadian buying a blank audio cassette or CD-R, pays a levy of between 24¢ and 29¢.

For this purpose, a collection agency, the Canadian Private Copying Collective (CPCC) was set-up. The CPCC monitors manufacturers and distributers of blank audio recording media (audio tapes, CDs, DVD etc.) and can even impose an audit to ensure that proper levies are collected and remitted.2

The statute also says that:

"... eligible performers and eligible makers have a right to receive remuneration from manufacturers and importers of blank audio recording media in respect of the reproduction for private use of a musical work embodied in a sound recording; a performer’s performance of a musical work embodied in a sound recording; or a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied."

For the Canadian consumer, the pay-off is substantial: they may reproduce audio for private use at no further cost and fearless as to copyright act liability. The only exceptions are copying for commercial or resale purposes, described by the statute as :

"... selling or renting out, or by way of trade exposing or offering for sale or rental; distributing, whether or not for the purpose of trade; communicating to the public by telecommunication; or performing, or causing to be performed, in public."

The private copying exemption is distinct from the fair dealing exemption in copyright law and it only covers recorded audio; the statute refers to "musical work embodied in a sound recording".

The adoption of levies and their related terms and conditions in respect of the private copying of recorded musical works, performances and sound recordings (recorded music) on blank audio recording media (blank media or medium) that are sold or otherwise disposed of in Canada has been left to the auspices of the Copyright Board, an administrative tribunal set up by the Government of Canada.

In Canadian Private Copying Collective, a 2004 case heard by the Federal Court of Appeal, and for which appeal was refused by the Supreme Court of Canada, Justice Noel summarized the law as follows:

"... the (Copyright) Act legalizes copying recorded music for private use and thus provides a statutory exception to the exclusive reproduction rights of eligible authors, performers and makers of recorded music (rights-holders). At the same time, it entitles rights-holders to compensation for their loss of exclusivity by imposing a levy on media used to record music."

Although increasingly resigned to the Canadian regime, the music industry does not appear overly fond of the regime, and have made a few attempts to whittle-away at it in Court.

In BMG Canada, they hired a specialized detective agency, Media Sentry, to ferret out 20 young Canadians that had each downloaded at least 1,000 songs from peer-to-peer file sharing site Kazaa. The case put forward by the music industry was surprisingly ill-prepared. Indeed, the main affidavit used by the music industry's lawyers was rejected by the court as hearsay!

The artists tried to cut down the regime by focusing on the file sharing aspect but Justice Finckenstein wrote:

"I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service.

"The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. No such evidence was presented by the plaintiffs in this case."

The recorded music regime has put Canada under some heat internationally. The United States, in particular, faced with a very influential music industry lobby, has even put Canada on a 3-country watch list of copyright renegades; a list which also includes China and Russia.

But that's the beauty of borders and customs officers.

While Americans are manipulated by the music industry by paying too much for music in proprietary format, and need to fear the FBI if they download a song, Canadian politicians have crafted an innovative copyright policy that recognizes the reality of the Internet and digital music.

Because of that, Canadians  pay the piper only once — at the electronic store, and thereafter boldly listen as no man has listened before.

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