Our Next 'War' with America

Canada's Federal Court has ruled that Internet music file swapping is legal in this country. Great. But next comes the true test of whether privacy rights 'made in Canada' can withstand enormous pressures from our American neighbors.

Now it's in the hands of our politicians. Will they change Canada's Copyright Act to please the U.S. mega-music industry?

Here's how we got here. The Canadian Recording Industry Association (CIRA), following the lead of the Recording Industry Association of America (RIAA), went to Federal Court to sue 29 Canadian music file sharers. To get to the users CRIA had to get the Internet providers (ISPs), Telus, Shaw and so on, to give up the names of subscribers who were connected to IP addresses which were linked to peer-to-peer or 'P2P' computer users. For that they needed a Court Order and, remarkably, the cable and telephone companies opposed that order.

Justice von Finckenstein of the Federal Court ruled the ISPs did not have to disclose the P2P service users' names to CRIA. In his judgment, available here in PDF, von Finckenstein listed a number of issues which stood in the way of granting the order to disclose.

Justice von Finckenstein thought forcing the ISPs to disclose their clients' details was a violation of those clients' privacy.  Before he was prepared to do that he held that an application would have to establish a prima facie case against the subscriber and show the public interest favored disclosure over the subscriber's privacy concerns.

Whose 'copyright' is right?

Justice von Finckenstein also considered the substantive question of whether downloading and putting music files into a shared folder was, in fact, a violation of Canadian copyright law.

Lawyers in Canada had been pretty certain downloading music was legal in Canada. That was the trade the music industry made in exchange for a levy which is charged on blank media in Canada. But there was a great deal of debate (keeners can read it here) about whether placing a song into a shared folder -  "uploading" it  - was covered by the Copyright Act's private use exemption.

"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service." wrote the judge.

The Federal Court decision was foreshadowed by an earlier, and likely more important, decision of the Canadian Supreme Court in CCH Canada Ltd. v. The Law Society of Upper Canada, which von Finckenstein cited.

The Canadian Supreme Court's view is that copyright is not an absolute entitlement but is to be balanced against other interests. "In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively….User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation." wrote Chief Justice of Canada, Beverly McLachlin in CCH.

America could use some balance

This is a fundamental difference between the way America and Canada look at intellectual property. Under the U.S. Digital Millennium Copyright Act there is not much by way of users' rights. The idea of "fair use" remains but not much else.

The Canadian situation is very different. The idea of a private right to copy was entrenched in the Copyright Act. It's implicit in the levy which is charged on blank CD's at the music industry's request. This meant that, at least in the case of music, owners and users each had rights. Justice von Finckenstein clarified those user rights within the context of Chief Justice McLachlin's observation that owners' and users' rights must be balanced.

So now there's a "Canada hole" in any attempt to shut down music file sharing in the United States, and that pretty much destroys the RIAA's litigation strategy.

The fact such a different set of assumptions is governing copyright in Canada underlines just how one sided American copyright has become.

CRIA, likely acting as a cat's paw for the RIAA, has said it will appeal the Federal court decision; but it is not likely to win. Instead, there will be tremendous pressure on the Canadian government to amend the Copyright Act. There is already some discussion of ratifying the provisions of the World Intellectual Property Organization treaties which prohibit anyone but copyright holder or licensee from making copies available. 

Under the Digital Millenium Copyright Act copyright owners have almost all the rights for almost ever. Users have none. It isn't working very well. Even as Congress is extending copyrights into the 2300s, people with cheap computers and limited respect for a law which ignores their internet reality, are creating a de facto public domain on the net.

A made in Canada solution

A couple of American Senators, who are not shy about accepting campaign funds from the RIAA and the Motion Picture Association of America have proposed the even more draconian PIRATE Act which provides for prison sentences of up to ten years, substantial fines and Justice Department prosecution of file sharers. That would be square in the tradition of the "War on Drugs". And we know how well that has worked.

The question is whether Canadian politicians are willing to stand up for a "made in Canada" intellectual property regime which balances the rights of copyright owners against the rights of people who buy copyright material. Like prescription drug pricing, semi-legal pot and gay marriage, open file sharing is a Canadian solution to a challenge facing our society.

It's our solution and we should expect politicians from every party to defend it against all comers. The RIAA, the American Senate and the World Intellectual Property Organization should be told - politely but firmly - to keep their hands off Canadians' private copyright.

Jay Currie is a Galiano writer whose writing and blog is at reviewing.blogspot.com