Thursday, September 04, 2003

It's Legal?

Check this out



On March 19, 1998, Part VIII of the (Canadian) Copyright Act dealing with private copying came into force. Until that time, copying any sound recording for almost any purpose infringed copyright, although, in practice, the prohibition was largely unenforceable. The amendment to the Act legalized copying of sound recordings of musical works onto audio recording media for the private use of the person who makes the copy (referred to as "private copying"). In addition, the amendment made provision for the imposition of a levy on blank audio recording media to compensate authors, performers and makers who own copyright in eligible sound recordings being copied for private use."


-- Copyright Board of Canada: Fact Sheet: Private Copying 1999-2000 Decision


 


As the RIAA wages its increasingly desperate campaign of litigation in terrorum to try to take down the largest American file sharers on the various P2P networks, it seems to be utterly unaware of the radically different status of private copying in Canada.


 


This is a fatal oversight, because P2P networks are international. While the Digital Millennium Copyright Act may make it illegal to share copyright material in America, the Canadian Copyright Act expressly allows exactly the sort of copying which is at the base of the P2P revolution.


 


In fact, you could not have designed a law which more perfectly captures the peer to peer process. "Private copying" is a term of art in the Act. In Canada, if I own a CD and you borrow it and make a copy of it that is legal private copying; however, if I make you a copy of that same CD and give it to you that would be infringement. Odd, but ideal for protecting file sharers.


 


Amazing. Thanks for the link Coop.





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11 comments:

  1. ToniSeptember 5, 2003 at 12:08 AM

    Interesting. Does it really make it legal to just copy the thing yourself? Is there no requirement of ownership? I don't really have time to wade through the act.

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  2. LineaSeptember 5, 2003 at 12:14 AM

    I sort of have mixed feelings about copying since the author should benefit from the work too but at least now I don't feel like my kids are doing something illegal.

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  3. RandallSeptember 5, 2003 at 1:52 AM

    According to the article it would seem to be legal, now the question is wether the article is correct or not. I guess we'll see.



    I do think the author should benefit from their work. I think we need to discover new ways for this to happen. The whole recording industry just leaves a bad taste in my mouth.



    I remember how Keith Green used to stick it to "The Man." He used to give away his albums and cassettes at concerts. If you would send him a letter requesting it, he would send you the albums for free. Boy, he used to rock the boat!!

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  4. Clinton C.September 5, 2003 at 8:47 AM

    I'm sorry but the article itself is wrong. The term "private copying" refers to duplicating copyrighted material by the person who is in posession of that material for which the creator has been compensated.

    For example, I bought a bunch of CDs and copied my favorite songs onto a "greatest hits" tape. That's perfectly legal because I have already payed for the copyright on the material. As long as I have the original copyrighted material in my posession Part VIII of the Copyright Act allows me to make copies for my own private use (ie "private copying"). If I give someone my cds my copies immediately become illegal because I no longer have the copyrighted material in my posession.

    If I lend someone the cds with the intent of getting them back my copies are still legal because I retain ownership. The person I lent them to could make as many copies as he wants for private use as long as the cd is in his posession. This is what private copying allows. However, once he returns the cds to me, his copies become illegal. The entire 8th ammendment to the Copyright Act was to free up restrictions on people who have legally paid for copyrighted material (or had it given to them) and continue to have it in their posession. P2P does not fall into this category.

    According to the article you could rent a movie, record it and sell or give away hundreds of copies. After all, Blockebuster didn't copy it for you, you did. Let's do that with cds and dvds too. When U2's next cd comes out only one person in Canada will have to buy it and then we can just "share" the files once it's put online. (That was sarcasm, not advocacy.) [The Copyright Act deals with visual media as well, not just audio.]

    And finally, the only reason a levy was added to recordable media was because people continued to break the law and steal. It was the only way to recover some of that money that was being stolen. Not everyone using these things were doing so illegally, but because of the lawbreakers, even the law abiders were punished. Religious broadcasters and places of worship put a lot of effort into fighting this tax because they rely heavily on audio tapes but in the end they lost.

    Sorry everyone. Just pay for the music, listen to the radio, or lobby to change the system, but don't steal from it. It's a matter of obeying the law and of integrity.

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  5. Clinton CSeptember 5, 2003 at 10:51 AM

    Oh ya, Churches can be exempt from the levy but they may need to apply for the exemption.

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  6. ToniSeptember 5, 2003 at 11:34 AM

    I must admit that this seems much more likely to me - that only the person that possesses a paid for copy can copy. Mind you, the idea of only 1 person in Canada buy the next U2 album is quite amusing.



    Having said all that, as a musician, I've taken a stance all my life not to charge for what I do, and I'm happy with that - I've got a proper job ;-) If the recording industry wasn't hell bent on making money then I'm sure we wouldn't be saddled with half the self destructive twaddle it foists on the public.

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  7. RandallSeptember 5, 2003 at 2:21 PM

    Preach it brother.

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  8. PhilSeptember 6, 2003 at 5:50 AM

    I found Clinton's comments above very interesting. He states that under the Canadian copyright law, a person can retain copies of music only as long as they are in legal possession of the original. However, I can't find that interpretation anywhere. There's a FAQ at http://neil.eton.ca/copylevy.shtml which indicates that here in Canada I can borrow a friend's CD, copy it, return the original, and legally keep the copy. I browsed through the Copyright Act itself at the Canadian Copyright Board's website http://www.cb-cda.gc.ca/info/act-e.html#rid-33760 and couldn't find any requirement that copies could only be retained if I'm in ownership of the original. If this is true, the question for me as a Christian becomes, if a thing is legal, is it automatically also ethical? (In Canada, sex outside of marriage is also legal but I believe it is sinful). If the levy on CDs is high enough to fairly compensate the artists, perhaps P2P copying or burning a CD that I've borrowed from a friend is OK, but I doubt it. Also if I mainly use CD-Rs for backing up data, it isn't fair to make me pay a levy which goes to David Bowie and Madonna.

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  9. RandallSeptember 6, 2003 at 4:34 PM

    This was probably more my understanding. Clintons interpretation was how I used to understand the Copyright law.



    We need a lawyer in here!



    I was concerned when "They" brought in the levy, that it would give a sense of moral freedom to the copiers, because they were indeed seeing cash go to the artists, through the levy. This would then open up guilt free copies.

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  10. Clinton CSeptember 7, 2003 at 10:47 AM

    Section 27 subsection (2), paragraph (2)(b) of the Copyright Act forbids the distribution of a copy as to affect the owner of the copyright. Seeing as a person who has a copy and has never paid renumeration to the copyright owner, he has affected the owner in that the owner has been deprived of renumeration due. A person who has legally come into posession of copyrighted material can copy it for their private use because they have paid renumeration to the copyright owner.



    Section 80, subsection (2), paragraph (2)(b) of the Copyright Act specifically forbids any copying for the purpose of distributing. This is probably why some people assume that if they loan a cd to a person who then copies it and returns the cd it is legal (and not distributing). However once there are 2 different copies in the posession of two different owners for which only one copy has had renumeration paid to the copyright owner, distribution has taken place. (The legal arguement I have seen on this point is not whether distribution has taken place but which party involved was the actual distributer.)



    In very simple terms copies can only exist in the posession of the person posessing the legally obtained copyrighted audio recording. Once there are 2 owners of 2 copies it has been distributed and section 80, subsection (2), paragraph (2)(b) forbids this. (I'm also getting a lawyer to look at this just out of my own inquisitiveness.)



    Mario Buchard, the General Counsel to the Copyright Board says individuals are now allowed to copy a sound recording of a musical work onto an audio recording medium for their own private use in accordance with the Copyright Act. Those who own the rights associated to those sound recordings (composers, authors, performers and producers) are entitled to be remunerated for the copies that are being made under it. This means that the remuneration is solely on account of private copying taping for one's own personal use. That is why a levy has been added to recordable medium which will then pay remuneration for these private recordings.



    [The FAQ listed by Phil, which oks the above copying, is written by Neil Herber who says that you shouldn't make decisions based on his material but check with a lawyer instead.]

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  11. JohannaSeptember 7, 2003 at 8:26 PM

    I don't think the issue of sharing audio files is a terribly pressing one, and I think that it is a matter of personal conviction. From your conversations, I think the Canadian law is rather broad on the subject, and I think that whether or not you share files is, at this time, probably more a matter of consience.



    I think they should just overhaul the entire system, banning internet sharing, but creating online 'stores' where you can buy the material directly from the artist. That would save costs of the CD, and the artist would get a larger share in the profits than they would selling them as CDs. Or they could make use of the present internet sharing progams like Kazaa and Morpheus, but tweak it a little bit so that you paid a small fee for every song you downloaded.



    In order for the CD to be on the internet, available for download means that someone else has bought it, uploaded it, and made it accessible. It will be there anyway, so I don't think that just ignoring it will make it go away. I agree with paying the artist for their efforts and creativity, but I'm not too sure about the copyright laws. How can you claim a music note or a sound? God created music for mankind, and I believe it was a gift from him. I don't think it's right to take his gift and exploit it just for your profit.



    Basically, I think the artists should be paid directly, so as to eliminate the big-name (money making) recording companies. I think everyone should pay to download, but not a large sum. I also think that until they make it mandatory and enforce stuff like that, people will continue to upload their CDs onto the internet, and people like me will continue to download them. If/when they enforce payment, I will pay, but not until then. If I have the money, I buy the CD. But most of the time, I don't have the money, and I only want one or two songs on the CD. Should I have to pay for the entire CD which I do not want? I dont think I should.

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