Is file-sharing legal in Canada?

Ask two IP lawyers whether downloading copyrighted music from the Internet is legal and you’ll get two different answers.

By Ivor Tossell

On Tuesday December 9th, 2008

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Some of the confusion stems from a section of Canada’s 1997 Copyright Act that permits copying of audio recordings – and only audio recordings, not videos or anything else – for private, non-commercial use. In exchange, a levy was applied to blank media like CDs and cassette tapes to compensate creators and distributors of the music.

That meant that in the late ‘90s, teens were legally allowed to make mix-tapes by recording ‘N Sync songs off the radio – as long as they never passed them around (and you didn’t, right?). That logic was later applied to music downloads, much to the chagrin of the recording industry, which tried to have the levy killed.

But uploading music is either outright illegal or at least a grey area, depending on who you ask. So it’s a safe bet that using applications like BitTorrent – which upload and download at the same time – to access copyrighted material constitutes infringement.

And what about the oft-heard excuse, “Isn’t this fair use?” Wrong country! Unlike the US, Canada has no fair use exemption, only the much narrower concept of “fair dealing,” which allows copying for news reporting, research, or private study, or criticism or review – but not parody or satire. However, a critical 2004 Supreme Court decision, CCH Canadian Ltd. v. Law Society of Upper Canada, gave fair dealing a lot of extra clout, calling it a user right instead of just a defence. It’s a decision that still rankles with many in the strong-copyright camp.