Copying Music ; Legal VS Illegal
(Information For Canadians)

I noticed that some Canadians are still confused as to what is and what isn't illegal when it comes to copying music so I thought i'd post a bit of information on the topic here.

The Private Copying Act

In 1997 our Copyright Act was amended with the Private Copying Act to legalize "Private Copying" and to introduce a levy, the blank audio media levy, to compensate copyright owners for this copying.

Resulting in sections 79 to 88 of our Copyright Act, the Private Copying Act was introduced to obtain an international compatibility, many countries having adopted similar amendments and the blank audio levy, whose rate is determined by the Copyright Board, is now being collected from the manufacturers and importers of blank audio media by a collective body assigned by the Copyright Board, the Canadian Private Copying Collective. But what is "Private Copying" ?

"Private Copying" allows Canadians to make copies of pre-recorded material for personal use, either from music recordings they've purchased or music recordings they've borrowed from a friend. But there are still rules that must be followed to make this copying legal.

Copying Music Legally

As previously mentioned, Canadians are allowed to make copies of the recordings they've purchased and strangely enough, even recordings they borrowed from friends. But several rules as to how copies are to be made and what can be done with the resulting copies are specified in section 80 of the Copyright Act :

  • A Canadian must perform his or her own copying. You can't ask a friend to do it. It's your "Private Copy".
  • You can't give, trade, rent or sell the resulting copy. So basically your copy must remain in your possession.
  • You can't broadcast or play the copy in public or allow anyone to do so. This means your copy can't be aired on radio, even on the net and that its public performance is limited to private gatherings, not including any paid event or large gatherings. Additional information for DJs can be found by clicking here.

UPDATE - On July 28th, 2005, the Supreme Court Of Canada refused to hear an appear by the industry to levy iPods and similar devices. The industry now unfortunately believes that copying music to these devices does not conform to the "Private Copying" guidelines established in our copyright act and is therefore illegal, unless it is copied from a legally purchased download or from a copy protected disc. (CRIA's Official Press Release)

UPDATE - In response to the Copyright Board's recent certification of levies on iPods and MP3 players, the Federal Court of Appeals upheld it's previous rulings on January 9th, 2008, overturning the Copyright Board's decision. (The Retail Council Of Canada Official Press Release Via Newswire / The Federal Court Of Appeals Ruling)

Peer To Peer File Transfers

On December 12th, 2003, the Copyright Board ruled that downloading is not illegal according to our Copyright Act. But they also ruled that uploading is disallowed by Section 80, Subsection 2 of the Copyright Act.

As mentioned in the previous section of this article, a copy of a musical recording cannot be given, traded, broadcasted or performed in public, the words "by telecommunication" having also been used in subsection 2 to address peer to peer transfers.

I suspect the Canadian Recording Industry Association will concentrate their efforts against individuals that uploaded large amounts of files. But they may still attempt to create a legal precedent when it comes to downloading as well, using criminal codes that are beyond the Copyright Board's jurisdiction.

No rights to unlawfully distributed material on behalf of the receiver were established in the Private Copying amendment or by the Copyright Board's ruling so downloading illegally uploaded material may be subject to several other laws in our criminal code. For example, these may be subject to our laws of theft (Criminal Code Section 322, Subsection 1a) and/or telecommunications theft (Criminal Code Section 326, Subsection 1b), both of which include the words "without color of right".

UPDATE - On March 31st, 2004, Justice Konrad von Finckenstein dismissed the Canadian Recording Industry's case against 29 P2P users due to a lack in evidence. In his ruling he states : "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."

So what does this mean to P2P users ? Does this ruling make unauthorized P2P transfers legal ? In my opinion, it does not make unauthorized P2P uploads legal. It simply results in a burden of proof being placed on the music industry. They will need to establish unauthorized distribution and reproductions to attempt to obtain a P2P user's information from their internet providers. And on June 20th, 2005, the government introduced Bill C-60, an amendment to our copyright act that would conform to international law and address file sharing, making it illegal as of December 31st, 2006. (Bill C-60 - Official Text / Canadian Record Industry Association Press Release)

UPDATE - Bill C-60 failed to proceed beyond it's first reading due to an election and the introduction of another government.

Copy Protection Circumvention

UPDATE - The circumvention of copy protection is now illegal in Canada. Bill C-11, the Copyright Modernization Act, amended the copyright act to disallow this circumvention.

Private Copying Tips

  • Keep your media, both blank and burned, in a dark, moisture and dust free environment. Heat, sunlight and dust can do some serious damage.
  • Burn your private copy at a reasonable speed. It may take more time but it reduces the chance of errors.
  • Turn memory hogging programs off before burning. I usually stop all internet traffic using a firewall and turn the anti-virus off when i'm burning.
  • Autoplay of the multimedia on enhanced CDs can be turned off temporarily on most Windows machines by depressing the shift key for a few seconds after inserting the disc.
  • I personally like Easy CD Creator by Roxio but i've heard good reviews on Nero 6 by Ahead Software.
  • You can copy your old vinyl, cassettes, etc. to CD by connecting your player to your computer via the "Line In" and using software like Pearson Education's Audio Cleaning Lab to clean the recording before burning it to CD.



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