p2pnet: File sharing in Canada, and the mistakes of the Heritage Minister.

p2pnet.net News View:- If, like many Canadians, you believe unauthorized sharing of music via p2p networks is legal in Canada, you'd be wrong.

But this isn't surprising considering that some of the most senior people in the federal Liberal government, such as heritage minister Liza Frulla, who's responsible for copyright law in Canada, make the same mistake.

I wrote earlier about the three parts to Justice Von Finckenstein's decision relating to three aspects of p2p distribution: uploading (sending, distributing, "sharing" - whatever term you prefer), "making available" and downloading (receiving).

While the recording industry likes to distract people with the less understandable "making available" proposal, the fact remains that unauthorized uploading is illegal in Canada

If you don't believe me and continue to share music without authorization, not realizing it's against the law, I largely hold Frulla responsible. She's been quoted many times as saying she wants to change the laws to "give the tools to companies and authors to sue".

This incorrectly suggests the record labels don't already have the tools to sue Canadians if they want to.

While the Conservative party says it would eliminate
the levy on blank recording materials
, the Liberal government has given no sign that it wants to change the private copying regime it created on behalf of the recording industry in 1997.

This means it won't be changing the copyright act to make unauthorized downloading of music for personal use illegal in Canada.

At the same time, I see no evidence to suggest the lack of a "making available" right had any real effect on the case in which Von Finckenstein ruled against the CRIA (Canadian Recording Industry Association). Whether this unnecessary new right had existed or not, evidence would still have been required of the type the CRIA failed to offer.

The main reason the record labels didn't get a court order to force ISPs to disclose the identities of 29 alleged infringing file-sharers (unauthorized uploaders), even though the RIAA (Recording Industry Association of America) is able to easily get names in the US, is because Canada has much stronger privacy and other laws to protect Canadians from frivolous lawsuits.

The CRIA needed to produce evidence of the unauthorized uploading of music to get a court order. They didn't. So their demand for a court order was denied.

The labels appealed in April, but this would be about the level of evidence required to gain a court order and wouldn't centre on the copyright act.

Privacy and citizens rights advocates such as CIPPIC would say strong evidence is necessary. But the vested interests at the CRIA would claim much weaker evidence is needed to mirror the US, where no evidence at all is required.

Does heritage minister Frulla want to change existing Canadian laws that protect Canadians from privacy invasions and frivolous lawsuits?

I've been attempting to open a discussion with her. But I've been unable to get a response other than form letters from the Ministerial Correspondence Secretariat.

In my most recent letter, copied to many of her colleagues in the Liberal party as well as opposition critics, I asked "are the words of the current Minister of Heritage what the Liberals want to go to election with?"

If Canadians now incorrectly believe that our Copyright act makes unauthorized distribution of music legal in Canada, the Minister is partly responsible for this because of her public misrepresentation of the facts. She should be held accountable for her part in any harm that may come to the industry or Canadians as a result of this misinformation. If the Heritage Minister is not adequately informed on this area of policy, how can the average
Canadian be expected to be?

I must conclude that either the Minister is not aware of the facts of the case, or that she wishes to amend the copyright act such that the legacy recording industry would not need need to provide evidence of wrongdoing in order to launch lawsuits against children. Is this really the message that the Minister and the Liberals wish to go to elections with?

While it would be easy for us all to just pass the buck and blame Frulla for not understanding the law, I think it would better serve our interests if we simply show we're better informed.

There are no holes in the Canadian copyright act to stop Big Music from suing them, and the sooner Canadians realize this, the better. This will stop uninformed politicians from changing our laws to allow the Big Four record labels to terrorize people to the extent they decide not to use advanced communications tools such as p2p for fear of being dragged into expensive court - whether they're breaking any laws or not.

If you're a Canadian reading this, contact your Member of Parliament and point out how serious the current heritage minister's lack of knowledge on copyright law is.

We may be able to take this area of policy away from her entirely so she won't be able to do any further damage.