David Canton – for the London Free Press – September 16, 2006
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Music downloading continues in Canada and downloading of TV programs and movies is becoming more popular. But is legal to do it?
The law is not totally clear. There are, for example, fair dealing exceptions that allow a person to copy or use copyright material for activities like private study, research and commentary. The courts have recently expanded the scope of those exceptions, but the exact limits are not clear.
We are also expecting a copyright reform bill soon that may change some of this.
Let’s start with the proposition that all creative works are automatically protected by copyright. That means it’s illegal to copy someone else’s music, video or image file.
The Copyright Act, however, makes it legal to copy another’s CD for one’s own use, but not to copy your CD and give that copy to another. Opinions vary, but most legal experts believe it’s also legal to download music from someone else, but not to allow others to upload from you.
Only music is covered by that exception — not video, photos or other material. Therefore. it’s indeed illegal to either download or upload TV shows and movies. It may be legal to download small portions of them in accord with the fair dealing exception.
The creator of those materials may decide it’s acceptable for others to copy their material. For example, an advertiser may be pleased with widespread viewing of its ads.
The Canadian recording industry tried to launch lawsuits against music uploaders. The court refused to force the Internet service providers to release the names of the individuals the recording industry was after.
Opinion varies as to whether the decision means actions against music downloaders and uploaders will never be successful or the court simply set out a procedure that would allow such actions if the recording industry so desired.
The terms of service we agree to with our Internet service providers generally contain provisions saying we are not to use those services for illegal or improper use.
The Internet service provider may have the contractual ability to stop one from using their service to perform illegal copying. They would be more inclined to do so if one was uploading massive amounts of material rather than downloading.
If the owner of copyright material notifies an ISP that an individual is improperly copying the owner’s material, the ISP is not obligated to take action and privacy obligations prevent the ISP from revealing the name of the individual without a court order.
So, in the end, several factors come together to determine copyright issues.
And if an action is brought, the Copyright Act includes a right to “statutory damages” between $500 and $20,000 per infringement.