Canada: The next target of the RIAA?

by Rob Flickenger

I happened upon this nifty little article about the ins and outs of copyright law in Canada. According to the article, as well as the website of the Copyright Board of Canada, music file sharing is completely legal for our good friends to the North. About five years ago, they deemed the situation of rampant illegal file sharing unenforceable, and decided to do two things: legalize file sharing for personal use, and attach a levy to recordable media (along the order of $0.60 per CD, in 1998 prices.)

I'm certianly no Copyright lawyer, but as has come up on one mailing list I'm on, the total term of copyright for sound recording in Canada is 50 years from the date of first manufacture of the master. Period. I found this on the Canadian Department of Justice website:

23. (1) Subject to this Act, the rights conferred by sections 15, 18 and 21 terminate fifty years after the end of the calendar year in which

(a) in the case of a performer's performance,

 (i) its first fixation in a sound recording, or

 (ii) its performance, if it is not fixed in a sound recording, occurred;

(b) in the case of a sound recording, the first fixation occurred; or

(c) in the case of a communication signal, it was broadcast.

But that's not all. Check out section 18, Rights of Sound Recording Makers:

18. (1) Subject to subsection (2), the maker of a sound recording has a copyright in the sound recording, consisting of the sole right to do the following in relation to the sound recording or any substantial part thereof:

(a) to publish it for the first time,

(b) to reproduce it in any material form, and

(c) to rent it out,

and to authorize any such acts.

Conditions for copyright

(2) Subsection (1) applies only if

(a) the maker of the sound recording was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or a citizen or permanent resident of a Berne Convention country, a Rome Convention country or a country that is a WTO Member, or, if a corporation, had its headquarters in one of the foregoing countries,

  (i) at the date of the first fixation, or

  (ii) if that first fixation was extended over a considerable period, during any substantial part of that period; or

(b) the first publication of the sound recording in such a quantity as to satisfy the reasonable demands of the public occurred in any country referred to in paragraph (a).

I am, of course, taking this out of context, so please read the entire document for the whole picture. If all of the legalese is getting to you (as it does to me), there's a human readable interpretation available from the Canadian Intellectual Property Office.

If I'm interpreting this properly, then all recordings of music, whether made in Canada or in any country that is a WTO member, become public domain (in Canada) fifty years after they are created. Does that mean that any music produced prior to 1953 is freely redistributable in Canada? And in any case, the copying of music (whether pre-Elvis or not) for "personal use" appears to be considered fair use by the Canadian Copyright Board.

How does the Internet fit into this? Is it legal for me (a citizen and resident of the United States) to download public domain music from Canada? And if so, where can I get a good deal on cheap Canadian co/lo space to start hosting the premier source for Canadian (and other WTO participant) public domain music?

This issue is vitally important to projects like Project Gramophone, who endeavour to preserve old 78RPM and wax drum recordings that are threatened by the never ceasing march of time, entropy, and imperialistic copyright law. I believe it to be the case right now that recordings published prior to 1926 are considered to be public domain in the U.S., but there is still an uncomfortable aura of grey area about it. I think it would be a shame to see these historically important recordings lost to the ages for a cause as ridiculous as corporate "intellectual property".

Would a legal (by Canadian standards) music file server, hosted in Canada, "break the seal" of overzealous United States copyright law?


2003-08-20 00:17:54
According to this page

"...[C]opyright experts...all agree that
all sound recordings essentially are under
copyright protection until the year 2067."

Here's hoping you can keep those 78's in
reasonably good condition until you are
'allowed' to preserve them by copying them
onto modern digital media.

2003-09-10 19:23:38
News not so good...
Unfortunately, the Copyright Board is currently trying to revamp the copyright act (Bill C-42 and C-43) to 'harmonise' it with WIPO requirements. One thing that came out of it all was that the DMCA goes WAY beyond what's required by WIPO.

I'm one of many people who wrote essays on this subject to the Copyright Board to try to convince them to limit the scope of any new laws solely to address the WIPO requirements and go no farther.

The other problem: the Digital Media levy has been creeping upwards. This year, SOCAN (the Canadian equivalent of RIAA) has asked for an increase to the levy and for the first time to include Compact Flash and other similar media, and hard drives as well. When the levy came in, it was 5c per CDR blank. It was raised to 21c two years ago. Now they're trying to kick it up to 56c a disk. In the same time, CDR blanks dropped from $1.50 to 30c each (all prices are Canadian).

Also, technically, fileswapping is NOT allowed. Bill C-43 section 68 and 80 only permit copying of music CDs in whole and in part. It does permit the copying of CDs not owned by the copier - but NOT the copying of a disk by someone for someone else. It also does not cover compressed music and absolutely prohibits posting and broadcasting music files.

So sorry, it's not as good as you think.

Jeff Lewis