Here is a smaller question which I will try to answer to demonstrate the complexity: When a Canadian downloads a piece of music from the Internet, and copies it to a blank CD, are they breaking the law?
It must first be clarified that we are talking about downloading music, not uploading it. When participating in peer-to-peer sharing of music one person that is transmitting the file and another receiving. The person transmitting the file is causing the music to be communicated without permission, and this is infringement of copyright.
The question of whether downloading is infringement is made complex by a section of the Canadian Copyright Act called Private Copying. This section indicates that "the act of reproducing all or any substantial part of ... a musical work ... 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 musical work, the performer's performance or the sound recording."
Because of this section of the Copyright act it is important to know whether the music is being copied onto an "audio recording medium" to know whether the act is infringement or not. If the music is stored on blank CDs, minidisks, and audio-cassettes, then it is not infringement but if the music is left on your hard disk then it is infringement.
Whether or not peer-to-peer file sharing is infringement is a different question to whether it is wrong or harmful. Most citizens would consider non-commercial, not-for-profit personal information sharing to be a de minimis (minor) crime not worthy of the hysteria expressed by the industry associations. Organizations such as Forrester Research "has surveyed a thousand music customers and concludes that MP3 downloads are good for the music business".
When investigating this further, the numbers simply don't add up. Music sales have dropped a mere 10-15% at the same time that the recording industry slashed production by 25%. Youth, the primary market for the music industry, have been switching from portable CD players to cell phones. The economy is generally in a slump, and the only logical conclusion given all the statistics is to agree that file sharing is what is saving the industry. Some record executives have warned fellow executives to Embrace file-sharing, or die.
The most controversial aspect of the Private Copying section of the Canadian copyright act is not the fact that it legalizes private copying, but that it creates something called a "Right of Remuneration". This allows the formation of copyright royalty collectives which will add a levy to any manufacturers and importers of blank audio recording media.
This levy is highly controversial, and is receiving a growing amount of technology media attention. Some of the largest retailers, the consumer electronics industry, and average Canadians are strongly opposing these levies. This includes the formation of the Canadian Coalition for Fair Digital Access (CCFDA)>. I wrote an article for Canadian New Media explaining why I believe that this levy is bad for creators (especially independent artists), consumers, and pretty much everyone else but the intermediaries such as the recording industry and copyright royalty collectives.
Fellow guest David Basskin understands the complexity of this situation well as he serves on the board of directors for the Canadian Private Copying Collective which is the organization collecting these levies. This week you can see a picture on the Canadian Musical Reproduction Rights Agency website of a photo-op with him handing out the first payments for the levy which has been collected since 2000.
If the music is put onto a blank CD, then it is not infringement. If the music is left on a computer hard-disk, it is currently considered infringement. This may change if the copyright royalty collectives such as the CPCC get their way and get the private copying levy added to hard disks. This will only make artists further beholden to these special interest groups.
This isn't at all logical to the average Canadian, and most just shake their head in disbelief when they hear about some of the details of copyright. The more they hear about copyright, the more they get interested in getting involved to try to change it.
They believe it is their right to copy music CD's they have bought to their hard disk to have easier access to their music collection via digital play-lists. They have payed for the music, and believe they have this right. The Copyright act doesn't appear to clarify this right.
On the other hand, they will think it is infringement to download a song from the net and copy it onto a blank CD. They may be vaguely aware of the blank media levy, but they won't be aware that this was created at the same time that private copying was legalized in Canada.
If the copyright royalty collectives get their way, and the levy is added to more devices/media and increased to the point that consumer electronics stores simply won't carry some communications devices in Canada, then this will become even more visible. Canadians won't likely let things stand if that becomes the case.
This is already a debate that is starting in the House of Commons, and will soon be a debate with average Canadians as well.
For more information on this debate I suggest people may want to go to the Digital-Copyright.ca forum or contact me.
