Bill C-60 User Guide: Peer-to-Peer File Sharing

I was not planning to deal specifically with file sharing since there is no "file sharing" provision in the bill. Since the issue continues to dominate discussion, however, (in no small part because the government itself has emphasized the issue) it may be useful to highlight the provisions that appear relevant to the question of file sharing.

Note that I will not discuss the anti-circumvention measures in significant detail here since they are only tangentially relevant to file sharing and have much broader implications for a wide range of access to digital content.

The law of file sharing (and I am thinking primarily of music here) is often distilled down to questions of uploading (communicating works on file sharing networks by placing in shared folders) and downloading files. Bill C-60 contains several provisions that will impact the upload side of the equation.

First, Section 2.4(1)(a), which defines a communication to the public by telecommunication in the Copyright Act, is amended by adding a "making available" right. The new language provides that a communication includes instances where a person makes a work available to the public in a way that allows the public to access it through telecommunication from a place and a time of their choosing. This provision becomes relevant because Section 3(1)(f) of the Copyright Act grants copyright owners the sole right to communicate their work to the public by telecommunication. With this provision in hand, if someone other than the copyright owner communicates the work by telecommunication to the public, there is a strong argument that they are infringing the owner's copyright.

Second, Bill C-60 amends Section 27 of the Act by adding Section 27(2.1), which provides for secondary infringement related to private copying. In particular, it becomes an infringement of the reproduction right to knowingly sell, rent, trade, distribute, communicate or perform a work that was made as a private copy under the Copyright Act's private copying provisions. The addition of secondary infringement for private copying does not represent a significant shift in the law. Private copying already provides that it is an infringement to private copy for one of the above purposes; this provision effectively separates purpose from later action, by enabling a person to lawfully make a private copy (assuming none of those purposes) but to later infringe copyright by knowingly selling, renting, etc. the work. In a file sharing context, this provision emphasizes that Canadians that download from a peer-to-peer system must do so for personal, non-commercial purposes in order to qualify for the private copying right. Downloading for the purposes of further distribution or subsequent distribution with knowledge of the private copy origin of the work will likely constitute infringement.

Third, the anti-circumvention provisions include a section that is best described as subsequent circumvention misuse. Section 34.02(3) focuses on a lawful circumvention (ie. a circumvention that is not for the purpose of copyright infringement) that later becomes an infringement since the user knew or ought to have known that a technological protection measure had been circumvented without the copyright owner's consent and the user (among other things) sells or rents the work or distributes the work in a manner that prejudicially affects the owner of the copyright. In a file sharing context, this provision would potentially capture some uploading where the user knew or ought to have known that the work was subject to a TPM.

While Bill C-60 therefore contains extensive provisions to cover uploading, downloading on peer-to-peer systems remains largely untouched (with the exception described above). Many experts believe that peer-to-peer downloading is covered by the private copying levy, though CRIA disputes that interpretation. I covered the issue in a column earlier this month. The relevant discussion was as follows:

"CRIA recently argued that the private copying right does not apply to copies made to personal computers. A review of the legislative history of private copying provides little support for this interpretation, however, as the statute was intentionally drafted in a technology neutral fashion such that it could be applied to new copying media, including computer hard drives.

The primary impetus behind the creation of the private copying system was the Charter of Rights for Creators, a 1985 parliamentary committee report. That report explicitly declined to tie the levy to a particular technology, presciently noting that "future recording devices might not use blank tape, thereby making a tape royalty obsolete. The work could be stored in a computer memory with no independent material support at all."

Eleven years later the Task Force on the Future of the Canadian Music Industry, which was co-chaired by the heads of CRIA and the Canadian Independent Record Production Association, continued to press for the creation of private copying levy to be applied to both media and devices. The technology neutral levy was enacted into law soon after with the industry celebrating success after 15 years of lobbying but lamenting that the delay had "literally killed dozens of careers."

While the levy was certainly intended to cover computer hard drives, the third objection is whether the provision, as currently drafted, actually achieves that goal. This issue was thrown into some doubt by a Federal Court of Appeal decision last December that upheld the validity of the levy but tossed out its application to MP3 players such as the Apple iPod.

That decision is currently under appeal to the Supreme Court of Canada. If Canada's highest court overturns the decision, the intent of the legislation will be restored and much of the doubt about its applicability to P2P downloaders will be removed.

If the Supreme Court declines to hear the appeal or upholds the decision, the impact will extend well beyond music file sharing. Some P2P downloading would no longer fall under the private copying right, though downloads to many external or removable hard drives would presumably still qualify. More importantly, copying of store bought CDs onto Apple iPods, a common practice extolled by CRIA itself, would effectively be rendered unlawful in Canada (unless there is an implied right to copy such CDs, which would then call into question the need for a private copying system)."

So where does this leave peer-to-peer file sharing in Canada? After Bill C-60, uploading content would likely be captured by at least one of the above provisions. Downloading, however, may still be lawful in Canada under certain circumstances. The answer to which circumstances will not come from the proposed legislation, but rather from the Supreme Court of Canada.

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