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A Week in the Life of the Canadian DMCA: Part Five

By Michael Geist

The week in the life of the Canadian DMCA concludes (day one, day two, day three, day four) with Stephen.

Stephen is a big music fan.  Tonight, he is going with his girlfriend to see his favourite band in concert.  He has purchased every CD issued by the band. To get ready for concert, he downloads a live version of one of his favourite songs that was released commercially in Europe (it is not available in Canada) that he finds on a file-sharing network.  The song is downloaded to an external hard drive that he uses to store his music.  While on the network, one hundred songs on the hard drive were available in his shared folder for others to download, though none were.  At his girlfriend’s request, he also copies three of the band's best songs onto a CD to play during the drive to the concert.  He gives the CD to his girlfriend as a gift.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activity - with one exception - would arguably violate the law.

Stephen’s download of a live version of a song arguably does not violate the law since the copy was completed for personal, non-commercial purposes on a medium that could be subject to the private copying levy.  As such, the copy may be a legal private copy.

Making available one hundred songs to the file sharing network for others to download, however briefly, raises the prospect of significant liability.  The much-discussed $500 personal download damage award does not apply here.  Instead, Stephen faces up to $20,000 per infringement or up to $2 million dollars despite the fact that there was no evidence that anyone downloaded anything from his computer.

Copying three songs to a CD for his girlfriend is also likely a violation of the law. The copies were not personal copies and thus do not qualify for the private copying right. Bill C-61 allows users to shift their music to other devices or medium, but they are not permitted to give away the copy (Section 29.22 (1)(e)).

Full post as published by Michael Geist on June 20, 2008 (boomark / email).