Canada’s Intellectual Property Firm

Rather than making potential criminals of many Canadians, the Canadian government implemented legislation stipulating that it is not copyright infringement to copy music onto an audio recording medium for private use. The legislation does not specify the source of the music, and it therefore appears to cover any source, including the Internet. However, at the same time, the Canadian Copyright Act was further amended to permit the Canadian Copyright Board to impose levies on blank audio recording media. The levies are paid to the Canadian Private Copying Collective (CPCC) which then distributes the funds to eligible authors, performers and producers of recorded musical works.

The exception is limited to "the private use of the person who makes the copy." Therefore, if person A copies music from the Internet for her personal use, there is no copyright infringement. However, if person A copies music from the Internet intending to give the copy to a friend, she is infringing copyright. Moreover, if person A copies music over the Internet, the person who uploads the music for person A to subsequently copy is arguably infringing copyright.

In a decision recently rendered by the Canadian Copyright Board (on December 12, 2003), the Board helped to clarify the definition of the term "audio recording medium." The Board held that blank CDs are covered, but that blank DVDs do not constitute an "audio recording medium." It follows that blank DVDs are not subject to a levy, and copying music onto a blank DVD constitutes copyright infringement.

The Board also imposed a new levy on media in digital audio recorders like portable MP3 players. However, the levy was only set for those recorders that have permanently built-in recording media, like internal hard drives. No levy was set on the removable media that is used in many other types of recorders because these forms of media are also used in many other devices.

The Board’s decision does not answer the question as to whether or not it is copyright infringement to copy music for personal use onto one's personal computer hard drive.

It should also be noted that while the levies set down by the Board are now firmly in place, the Board's comments regarding the legality of internet downloading have yet to be endorsed by the Canadian Courts, who are the ultimate authorities on the meaning of the provisions of the Copyright Act, including the provision relied upon by the Copyright Board in its decision. Therefore, while the statements of the Board are not binding in any future judicial determination that may take place, they should have persuasive effect. The Canadian Recording Industry Association, which has recently threatened legal action against individual file sharers in Canada, will likely need to consider the implications of this important Copyright Board decision before formulating any litigation strategy.