Short answer: yes.
Well, it is more accurate to say that file-sharing is not illegal in Canada.
In 2005, I wrote and essay: “Copyright v. Privacy: A Review of the Legal War Between Record Labels and File Sharing from a Canadian Perspective”. I am going to review it here, in my blog and discuss what has happened since. Here is part one of the essay:
In February of 2004, the Canadian Recording Industry Association (CRIA) filed a federal lawsuit against 29 alleged file sharers for copyright infringement and requested their identities from the five major Canadian Internet Service Providers (ISPs). This was the first suit brought by the record label trade group against individual peer-to-peer (P2P) file sharers whom the CRIA claim have caused the loss of millions of dollars and dozens of jobs in the Canadian music industry. Citing privacy concerns, the ISPs refused. The CRIA proceeded to file a motion in the federal court to order the ISPs to disclose their clients’ private information.
This case forced into court the issue of whether file sharing is legal in Canada. In the last several years the Recording Industry Association of America (RIAA), the label trade group for the U.S., has begun suing individual file sharers for infringement of copyright. They are able to do this by virtue of the Digital Millennium Copyright Act (DMCA), which implements the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty, (WPPT), 20/12/1996 (CRNR/DC/95, December 23, 1996) into U.S. law. The DMCA allows copyright holders, among other things, special rights to sue anonymous infringers. Since the DMCA was signed into law in 1998, over 1500 file sharers have been sued for monetary damages by the RIAA. Canada has not implemented the WIPO treaty into copyright law and thus,
“It’s a more difficult, expensive and cumbersome process [to sue infringers] than in the U.S.” (Hu, 2003 quoted Geist)
The plaintiff, the CRIA, represents the major record labels and claim to produce 80% of all legitimate sales of music in Canada. The Defendants are a number of peer-to-peer file sharing program users (mainly Kazaa) known only by their online aliases. The CRIA claims that it has proof that the defendants have made thousands of copyright protected songs available to the world by placing them in shared folders on their hard drives.
By law, in order to bring action against these defendants, the CRIA must be able to identify who they are. They say that the only way that they can determine their identities is through the ISPs providing Internet access. The alleged file sharers have an expectation of privacy that “is based on both sections 3 and 5 of the Personal Information Protection and Electronic Documents Act (PIPEDA) and on their ISP account agreements.” (Finckenstein, 2004 par. 9) But, under PIPEDA, paragraph 7(3)(c), an ISP may disclose personal information if so required by court order. The ISPs originally refused to provide these names citing PIPEDA and hence the CIRA hence brought a motion to have the court order the ISPs to identify the users.
Gripping, no? Subscribe to this blog and don’t miss the stunning conclusion!!
