The Legality of Downloading Music in Canada

A very common question I get is “Am I going to jail for downloading a bunch of Metallica songs?” or some variant thereof. The short answer is “not for downloading, but possibly for your questionable musical taste”.

Musical works, regardless of their quality, are protected by copyright. Violating the musician’s copyrights is usually a civil (as opposed to criminal) offence, so you needn’t work about jail time unless you’re selling or distributing copyrighted materials. However, there are still civil penalties (that means $$$$) for other copyright infringements, so you’re not out of the woods just yet.

Copyright in Canada is governed by the Copyright Act. Under s. 80 of this Act, private copying of music onto an “audio recording medium” is permissible. What’s an “audio recording medium”, you ask? Well, according to the Copyright Act, it is “recording medium… onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose”. This clearly covers things like CDs, mindiscs, blank cassettes (for you Luddites out there), and MP3 players. Does it cover a computer hard drive? I would argue that it does, especially given the ever-increasing popularity of using home computers as “media centres”. If it didn’t we would also have the odd circumstance where downloading songs directly on to your iPod would acceptable, but downloading onto your hard drive and then using iTunes to transfer would be verboten. Even more absurd would be that fact that a 2.5” hard drive used in an MP3 player would be an “audio recording medium”, while the exact same drive in a laptop would suddenly become a den of copyright violation. Regardless, while it hasn’t been settled definitely by a Canadian court, downloading music onto your computer for personal use most likely falls within the “private copying” exception and isn’t likely to land you in any trouble.

Now here’s where things get complicated- if you’re a good netizen and conscientious file sharer, when you download a song you don’t just take it and run. Instead, you leave it in a shared directory so that other people on the network can download it as well and also enjoy that oh-so-special remix of Karma Chameleon. After all, that is how P2P works, and without users doing just that the whole system would fall apart. However, doing this goes beyond just “private copying” and crosses into the realm of distributing the copyrighted material. Is this copyright infringement?

The recording industry says that it is. In 2004, a number of major record labels in Canada sued 29 Canadians who had each downloaded and shared over 1,000 songs in the case BMG Canada Inc. v. John Doe. There was one catch- the record industry didn’t know the names of the downloaders, only their IP addresses and usernames, so they brought an application in court to force the ISPs to provide their names and addresses. At the Federal Court, Justice von Finkenstein found that placing music files in a shared directory and “passively” offering them for sharing is not considered to be distribution. Unfortunately, in 2005 the Federal Court of Appeal later found that this decision was premature, so while they didn’t say it was wrong it can’t really be relied upon as an accurate statement of the law.

Where does this leave us? Well, the question of whether placing copyrighted files in a shared directory is “distribution” is still unsettled. On one hand, as Justice von Finckenstein found, placing files in a public directory can be seen as no different than placing a photocopier in a room with copyrighted books- you provide the facilities but don’t actively distribute the material or authorize others to make copies. On the other, many would argue that doing so tacitly authorizes (and even encourages) others to take copies of the material and constitutes distribution.

Until a Canadian court decides this issue, either side could be argued, and there is a chance that your shared files will land you as one of the next John or Jane Does targeted by the recording industry. To play it safe, either disable file sharing on your P2P client or use legal services like iTunes to purchase your music.