<nettime> Canada deems P2P downloading legal

[Felix Stalder <felix@openflows.org>]

[This strikes me as a major precedence, though it's likely to raise as many 
question as it addresses. For example, how do you differentiate between 
uploading and downloading in a p2p networked? Do files in the 'shared folder' 
already count as uploaded? Also, one has to wonder if the old distribution 
mechanisms represent the user behaviour in p2p systems?




For those who like to read the actual legal texts, they are here [1]. The 

[1] http://www.cb-cda.gc.ca/new-e.html]

*Canada deems P2P downloading legal*
By John Borland
CNET News.com
December 12, 2003, 2:20 PM PT
URL: http://zdnet.com.com/2100-1104-5121479.html

*Downloading copyrighted music from peer-to-peer networks is legal in
Canada, although uploading files is not, Canadian copyright regulators
said in a ruling released Friday.*

In the same decision [1] the Copyright Board of Canada imposed a government 
fee of as much as $25 on iPod-like MP3 players, putting the devices in the 
same category as audio tapes and blank CDs. The money collected from levies 
on "recording mediums" goes into a fund to pay musicians and songwriters for 
revenues lost from consumers' personal copying. Manufacturers are responsible 
for paying the fees and often pass the cost on to consumers.

The peer-to-peer component of the decision was prompted by questions from 
consumer and entertainment groups about ambiguous elements of Canadian law. 
Previously, most analysts had said uploading was illegal but that downloading 
for personal use might be allowed.

"As far as computer hard drives are concerned, we say that for the time being, 
it is still legal," said Claude Majeau, secretary general of the Copyright 
Board.

The decision is likely to ruffle feathers on many sides, from 
consumer-electronics sellers worried about declining sales to international 
entertainment companies worried about the spread of peer-to-peer networks.

Copyright holder groups such as the Recording Industry Association of America 
(RIAA </2100-1105-5113188.html?tag=nl>) had already been critical of Canada's 
copyright laws, in large part because the country has not instituted 
provisions similar to those found in the U.S. Digital Millennium Copyright 
Act. One portion of that law makes it illegal to break, or to distribute 
tools for breaking, digital copy protection mechanisms, such as the 
technology used to protect DVDs from piracy.

A lawyer for the Canadian record industry's trade association said the group 
still believed downloading was illegal, despite the decision.

"Our position is that under Canadian law, downloading is also prohibited," 
said Richard Pfohl, general counsel for the Canadian Recording Industry 
Association. "This is the opinion of the Copyright Board, but Canadian courts 
will decide this issue."

In its decision Friday, the Copyright Board said uploading or distributing 
copyrighted works online appeared to be prohibited under current Canadian 
law.

However, the country's copyright law does allow making a copy for personal use 
and does not address the source of that copy or whether the original has to 
be an authorized or noninfringing version, the board said.

Under those laws, certain media are designated as appropriate for making 
personal copies of music, and producers pay a per-unit fee into a pool 
designed to compensate musicians and songwriters. Most audio tapes and CDs, 
and now MP3 players, are included in that category. Other mediums, such as 
DVDs, are not deemed appropriate for personal copying.

Computer hard drives have never been reviewed under that provision, however. 
In its decision Friday, the board decided to allow personal copies on a hard 
drive until a fee ruling is made specifically on that medium or until the 
courts or legislature tell regulators to rule otherwise.

"Until such time, as a decision is made on hard drives, for the time being, 
(we are ruling) in favor of consumers," Majeau said.

Legal analysts said that courts would likely rule on the file-swapping issue 
later, despite Friday's opinion.

"I think it is pretty significant," Michael Geist, a law professor at the 
University of Ottawa, said. "It's not that the issue is resolved...I think 
that sooner or later, courts will sound off on the issue. But one thing they 
will take into consideration is the Copyright Board ruling."

Friday's decision will also impose a substantial surcharge on hard drive-based 
music players such as Apple Computer's iPod or the new Samsung Napster player 
for the first time. MP3 players with up to 10GB of memory will have an added 
levy of $15 added to their price, while larger players will see $25 added on 
top of the wholesale price.

MP3 players with less than 1GB of memory will have only a $2 surcharge added 
to their cost.

With a population of about 31 million people, Canada is approximately 
one-tenth the size of the United States. But Canadians are relatively heavy 
users of high-speed Internet connections, which make it easy to download 
music files. About 4.1 million Canadians were using a broadband connection at 
home as of the end of June 2003, according to U.K.-based research firm Point 
Topic. By comparison, U.S. cable and DSL (digital subscriber line) 
subscribers totaled 22.7 million at the end of September, according to 
Leichtman Research Group.

Canada has already raised the hackles of some copyright holders through its 
reluctance to enact measures that significantly expand digital copyright 
protection, as the controversial Digital Millennium Copyright Act (DMCA) has 
done in the United States. As a result, Canada could become a model for 
countries seeking to find a balance between protecting copyright holders' 
rights and providing consumers with more liberal rights to copyrighted works. 
For now, it remains unclear how other countries might be influenced by 
Friday's ruling.

Geist said he believes the tariff decision could be just the tip of the 
iceberg for hardware makers, as Canadian regulators grapple with the full 
implications of the policy. Other devices, including PCs, may eventually be 
brought under the tariff scheme, he predicted.

"Given that they've made a strong stand on (peer-to-peer matters), if the 
policy remains the same, there's little choice but to move ahead on personal 
computers," Geist said.

However, a representative of the Canadian Private Copying Collective (CPCC), 
the group of music copyright holders that typically petitions for new media 
types to be added to the list, said computers were not on its agenda.

"We have never sought a levy on computer hard drives and do not intend to do 
so in the future," Lucie Beaucheni, vice chair of the CPCC, said.



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