The biggest techno-legal issue in Canada now is the Canadian Recording Industry Association (CRIA) action against 29 alleged music file swappers. All the alleged swappers used KaZaa. The Statement of Claim is here. While this action would seem similar to the RIAA actions in the United States, there are some different hurdles to be overcome due to Canadian legislation.
Canada does not have the equivalent of the DMCA. To obtain the names of the alleged file swappers, CRIA will have to obtain an order from a court. They have brought a motion seeking to compel the ISPs to disclose the names of their subscribers who are alleged to have been involved. Some of ISPs have advised they will oppose the motion.
The Canadian Internet Policy and Public Interest Clinic (CIPPIC) and Electronic Freedom Canada(EFC) were both granted leave to intervene on March 1, 2004. It appears that there will be a thorough review of the competing public policy issues in this action. The motion will raise issues under Canada's privacy legislation PIPEDA.
Even if CRIA is successful in obtaining the names of the alleged file swappers, they will still have to confront section 80 of the Copyright Act which provides for personal copying for private use:
"80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of
(a) a musical work embodied in a sound recording,
(b) a performer's performance of a musical work embodied in a sound recording, or
(c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied
onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording."
While the Act would seem to cover downloading of music files, it may not cover making files available for uploading by others.
The action is in its infancy. It will certainly have an impact on the development of internet and privacy law in Canada.
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