The Difference in Downloading Music in the USA and Canada - Term Paper Example

The difference in downloading music in the USA and Canada INTRODUCTION Downloading music has become one of the most common and simple things to do onthe Internet. Yet, the legislative provisions that cover this domain differ from country to country. The Canadians seem to be the lucky ones in this situation. While the Americans are afraid to even enter a pirate website under the threat of a lawsuit, Canadians encounter no restriction in downloading whatever kind of music they like. Moreover, why would they encounter any? The legislation is on their side and it is even convenient like this, because this way they download any song they want without paying a cent for it. In this paper, the author’s main objective is to point out the main differences and similarities between the Canadian and American legislative systems in the music download domain. The author will also try to explain why Canada has the highest rate of illegal MP3 downloads in the world. The author will analyze the legislative acts that regulate the copyright protection in Canada and will point out their weak points, those that make illegal music downloading possible and, to some extent, legal. Examples of law cases based on illegal MP3 download will be produced and analyzed. The research paper will be concluded with several suggestions on how this situation might be improved in such a way that Canada is no longer the “winner” among the top countries with the highest level of piracy in music downloads. I. THE DIFFERENCES IN THE LEGISLATIVE ACTS The USA Digital Millennium Copyright Act has certainly gained its “fans” among the people who not so long ago were downloading mp3s without any restriction and who now must check twice before accepting a download or a file-sharing. The Digital Millennium Copyright Act has outlawed many online activities, among which it is easy to find the mp3 downloading. So, unless you are a librarian who desperately believes that music is important for the library (and you can even prove it) or a researcher, there is no other legal way which would allow you to download or share music files in USA. The DMCA and the United States Copyright Law also outlaw making copies of copyrighted music, unless it is for personal use. The infringements include penalties of thousands of dollars and jail sentence is also possible. In the USA the copyright belongs to the composer and it is created from the moment that the composition is “fixed in any tangible medium of expression”1. So if one wishes to download that composition, it is recommended under the provisions of the US Copyright Law and the DMCA that he does it from an authorised legal site, by purchasing it from the provider. Furthermore, peer-to-peer sharing is also prohibited under the law regulations. In Canada, on the other hand, music downloading encounters no legal prohibition. “According to the Canadian Recording Industry Association (CRIA) Canada has the highest per capita rate of illegal MP3 downloads in the world! In light of this, the CRIA has been complaining about Canadas lax copyright protection laws. According to the CRIA illegal downloading hasnt just hurt the music industry but also software developers.”2 This situation is the result of the old, non-modernized copyright legislation. One of the most important acts that protects the copyright in Canada is the Copyright Act. There were several bills that submitted reforms and updates of this act, but none of them has been accepted so far. Canadian peer-to-peer sharing does not fall under any legal prohibition3, such programs like Kazaa or Morpheus being very popular here. Canadian court interprets the copyright provisions in a more liberal and non-stringent manner than in USA. In Canada, the existing copy right protection laws are interpreted in such a manner as to make the downloading of music files, copying them and placing them on peer-to-peer networks as not infringements of the copy right protection laws, which is in sharp contrast to the position of courts across the border in USA, where downloading of music files and placing them on peer-to-peer networks is considered an infringement of the copy right protection laws, and liable for stringent punishment of heavy fines and jail terms.4 The threat of a lawsuit for illegal download does not hang on the consumers’ heads, as it happens in the USA. Moreover, the copyright act itself is not as clear and concrete as the US DMCA, leaving a lot of room for interpretation. The Canadian copyright legislation includes a crucial private copyright exemption provision that allows individuals living in the country to download music files and make copies of it for non-commercial use. Peer-to-peer transfer of these files falls under the interpretation of non-commercial use. Thus, people in Canada can freely download music files from Internet sources, record them, and send them to friends and relatives on a non-commercial basis without any fear of legal action.5 However, uploading music is not legal even in Canada. In Canada, the following question comes to one’s mind: Are the people who download illegal music consumers or pirates? Therefore, an update of the Canadian copyright law day by day becomes more and more urgent. On the other hand, Canada is the country that tries to make its citizens happy and unless you are downloading means of further distribution, it should not be illegal to download music for your own personal purpose. Therefore, there are two sides of this problem. II. CASES One of the most USA major cases concerning the illegal music download refers to a woman in Minnesota. The federal jury decided to punish a mother of four children for infringing the copyright of 24 music files by sharing them on the Kazaa peer-to-peer network by giving her a $1.92 million fine. This is a strong example of the abuses possible under the 1976 Copyright Act. This is the result of a second trial of the woman and the rejection of two settlement offers. Another major legal case in the USA refers to Arista Records v. Usenet.com, when the copyright owners gained one of the most important legal victories. In this case, the Supreme Court held that peer-to-peer software developers may be held liable for facilitating infringement by inducing their users to infringe. Usenet was found liable for its overwhelming use of the service for infringement due to the fact that there were advertisements posted on the site referring to the availability of the infringed works and the technical support provided by the site to its users in searching pirated material. This case is important as its ruling set a strong precedent and somehow pressured the other doubtful online service providers in fighting the online piracy. In Canada, on the other hand, the situation is completely different. For example, the Canadian Recording Industry Association (CRIA) requested the judge’s permission for identifying the IP of 29 alleged Canadian file sharers, in order to sue them after they had been identified. CRIA was following the American’s homologue example - RIAA, which had managed to sue over 1500 people for the same actions, including children. The Canadian judge rejected CRIA’s request as in Canada the actions of downloading music and sharing it with other people online are legal. However, this is not legal in USA and other countries and the online file sharing does not have borders, the swappers often being from different countries. Howard Knopf, an attorney who works with the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa believes that "The court accepted that copyright legislation has to be read as it is, not as CRIA would like it to be."6 However, in 2005, in the appeal submitted by CRIA, the Court held that in the future cases, the legality of downloading music and sharing it with others should be reconsidered. CRIA’s request was refused again, due to the lack of evidence linking the defendants to copyright infringement. Due to the permissive legislation of Canada, there are not as many legal cases in this domain as there are in USA. However, things could change if a reform of the Copyright acts would happen. CONCLUSIONS Canada continues to be the heaven of music downloaders. The Canadian rulings have been both praised as well as roughly criticized for its permissive nature. As it has already been mentioned, Canada is the country that exists for its citizens, and this fact is proved in the existing copyright legislation. For us, the simple consumers, the liberty of downloading music is more than we could ask. However, there are other citizens that are negatively affected by these liberties. The artists, for example, lose a lot of money due to this fact. The recording companies also have their big share of losses. Therefore, equilibrium should be set among the two sides. A more explicit stipulation referring to the concept of personal use should be included in the legislation. In addition, the online sharing should be prohibited by law. A strict number of allowed downloads should be set in order to avoid the abuse. Maybe, a set of three songs of an artist should be allowed to be downloaded by one user, just to give him the chance to understand if he likes that artist’s performance or not. The following songs of this artist should be downloaded in exchange for payment, which should not be exaggerated. The payment should be regressive, meaning that the more songs you download, the cheaper the price gets. None of the interests of the civil society and the copyright holders must be omitted. Again, equilibrium is the key word. References: 1. 17 U.S.C, par. 102 2. Akeel Shah (March 20, 2006). Canada Gives Safe Harbor to Music Pirates. Blogcritics. Retrieved on March 27, 2010 from http://blogcritics.org/music/article/canada-gives-safe-harbor-to-music/ 3. Mackenzie, E. (2007). If I had a million downloads, I’d buy me a CD. Retrieved March 17, 2009, from Web Site: http://carleton.ca/Capital_News/16112007/n5.shtml 4. CBC News. (2006). Downloading music. Retrieved March 17, 2009, from Web Site: http://www.cbc.ca/news/background/internet/downloading_music.html 5. McCullagh, D. (2003). Cyberpiracy north of the border. CNet news. Retrieved March 17, 2009, from http://news.cnet.com/Cyberpiracy-north-of-the-border/2008-1028_3-5097180.html?tag=mncol;txt 6. Borland John (March 31, 2004). Judge: File sharing is legal in Canada. CNet news. Retrieved on March 26, 2010 from http://news.cnet.com/2100-1027_3-5182641.html Read More