<nettime> Canada deems P2P downloading legal (fwd)
Happy X-Mas:
---------- Forwarded message ----------
Date: Sat, 13 Dec 2003 13:29:39 +0100
From: Felix Stalder <felix@xxxxxxxxxxxxx>
To: nettime-l@xxxxxxxxxxxxx
Subject: <nettime> Canada deems P2P downloading legal
[This strikes me as a major precedence, though it's likely to raise as many
question as it addresses. For example, how do you differentiate between
uploading and downloading in a p2p networked? Do files in the 'shared folder'
already count as uploaded? Also, one has to wonder if the old distribution
mechanisms represent the user behaviour in p2p systems?
For those who like to read the actual legal texts, they are here [1]. The
[1] http://www.cb-cda.gc.ca/new-e.html]
*Canada deems P2P downloading legal*
By John Borland
CNET News.com
December 12, 2003, 2:20 PM PT
URL: http://zdnet.com.com/2100-1104-5121479.html
*Downloading copyrighted music from peer-to-peer networks is legal in
Canada, although uploading files is not, Canadian copyright regulators
said in a ruling released Friday.*
In the same decision [1] the Copyright Board of Canada imposed a government
fee of as much as $25 on iPod-like MP3 players, putting the devices in the
same category as audio tapes and blank CDs. The money collected from levies
on "recording mediums" goes into a fund to pay musicians and songwriters for
revenues lost from consumers' personal copying. Manufacturers are responsible
for paying the fees and often pass the cost on to consumers.
The peer-to-peer component of the decision was prompted by questions from
consumer and entertainment groups about ambiguous elements of Canadian law.
Previously, most analysts had said uploading was illegal but that downloading
for personal use might be allowed.
"As far as computer hard drives are concerned, we say that for the time being,
it is still legal," said Claude Majeau, secretary general of the Copyright
Board.
The decision is likely to ruffle feathers on many sides, from
consumer-electronics sellers worried about declining sales to international
entertainment companies worried about the spread of peer-to-peer networks.
Copyright holder groups such as the Recording Industry Association of America
(RIAA </2100-1105-5113188.html?tag=nl>) had already been critical of Canada's
copyright laws, in large part because the country has not instituted
provisions similar to those found in the U.S. Digital Millennium Copyright
Act. One portion of that law makes it illegal to break, or to distribute
tools for breaking, digital copy protection mechanisms, such as the
technology used to protect DVDs from piracy.
A lawyer for the Canadian record industry's trade association said the group
still believed downloading was illegal, despite the decision.
"Our position is that under Canadian law, downloading is also prohibited,"
said Richard Pfohl, general counsel for the Canadian Recording Industry
Association. "This is the opinion of the Copyright Board, but Canadian courts
will decide this issue."
In its decision Friday, the Copyright Board said uploading or distributing
copyrighted works online appeared to be prohibited under current Canadian
law.
However, the country's copyright law does allow making a copy for personal use
and does not address the source of that copy or whether the original has to
be an authorized or noninfringing version, the board said.
Under those laws, certain media are designated as appropriate for making
personal copies of music, and producers pay a per-unit fee into a pool
designed to compensate musicians and songwriters. Most audio tapes and CDs,
and now MP3 players, are included in that category. Other mediums, such as
DVDs, are not deemed appropriate for personal copying.
Computer hard drives have never been reviewed under that provision, however.
In its decision Friday, the board decided to allow personal copies on a hard
drive until a fee ruling is made specifically on that medium or until the
courts or legislature tell regulators to rule otherwise.
"Until such time, as a decision is made on hard drives, for the time being,
(we are ruling) in favor of consumers," Majeau said.
Legal analysts said that courts would likely rule on the file-swapping issue
later, despite Friday's opinion.
"I think it is pretty significant," Michael Geist, a law professor at the
University of Ottawa, said. "It's not that the issue is resolved...I think
that sooner or later, courts will sound off on the issue. But one thing they
will take into consideration is the Copyright Board ruling."
Friday's decision will also impose a substantial surcharge on hard drive-based
music players such as Apple Computer's iPod or the new Samsung Napster player
for the first time. MP3 players with up to 10GB of memory will have an added
levy of $15 added to their price, while larger players will see $25 added on
top of the wholesale price.
MP3 players with less than 1GB of memory will have only a $2 surcharge added
to their cost.
With a population of about 31 million people, Canada is approximately
one-tenth the size of the United States. But Canadians are relatively heavy
users of high-speed Internet connections, which make it easy to download
music files. About 4.1 million Canadians were using a broadband connection at
home as of the end of June 2003, according to U.K.-based research firm Point
Topic. By comparison, U.S. cable and DSL (digital subscriber line)
subscribers totaled 22.7 million at the end of September, according to
Leichtman Research Group.
Canada has already raised the hackles of some copyright holders through its
reluctance to enact measures that significantly expand digital copyright
protection, as the controversial Digital Millennium Copyright Act (DMCA) has
done in the United States. As a result, Canada could become a model for
countries seeking to find a balance between protecting copyright holders'
rights and providing consumers with more liberal rights to copyrighted works.
For now, it remains unclear how other countries might be influenced by
Friday's ruling.
Geist said he believes the tariff decision could be just the tip of the
iceberg for hardware makers, as Canadian regulators grapple with the full
implications of the policy. Other devices, including PCs, may eventually be
brought under the tariff scheme, he predicted.
"Given that they've made a strong stand on (peer-to-peer matters), if the
policy remains the same, there's little choice but to move ahead on personal
computers," Geist said.
However, a representative of the Canadian Private Copying Collective (CPCC),
the group of music copyright holders that typically petitions for new media
types to be added to the list, said computers were not on its agenda.
"We have never sought a levy on computer hard drives and do not intend to do
so in the future," Lucie Beaucheni, vice chair of the CPCC, said.
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