The State of File Sharing and Canadian Copyright Law

The recent Federal Court of Appeal music file sharing case, in which the court rejected the Canadian Recording Industry Association’s attempt to uncover the identities of 29 alleged file sharers, raises important privacy and copyright issues. Last week’s column reviewed the court’s test to protect personal privacy; this week’s column assesses the copyright implications of that decision.
Although the court declined to articulate definitive conclusions on important copyright issues associated with file sharing, its decision will undeniably have a major impact on copyright policy. This impact is best addressed by analyzing three questions — can CRIA sue file sharers? Can it win such suits? And what legal reverberations might ensue if it does win?
The answer to the first question is relatively straight forward. CRIA can sue file sharers in Canada and it has indeed asserted that the decision provides a blueprint for future suits.
In the aftermath of last year’s trial decision, the recording industry expressed grave concern about the state of Canadian copyright law and lobbied aggressively for immediate changes. In light of the appellate decision, it is now safe to declare the copyright emergency over. In fact, the fears of a devastating effect never materialized. According to CRIA’s own figures, in the thirteen months of reported sales since the March 2004 decision, both sales and shipments have increased.
The answer to the second question — whether CRIA can win file sharing suits — is open to debate, particularly with respect to suits filed against individuals that solely download music from peer-to-peer networks. The complicating factor is the effect of Canada’s private copying system, which establishes a levy on blank media such as recordable CDs. Anna Bucci, the Executive Director of the Canadian Private Copying Collective, the body that administers the $120 million in royalties that have been generated by the levy, last week described private copying as creating “a new right for the Canadian public — the right to make private copies of music for their own personal use.”
The State of File Sharing and Canadian Copyright Law