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Is music downloading copyright infringement in Canada?

There’s some sparring going on in the copyright world between Michael Geist and Richard Pfohl of the Canadian Recording Industry Association. In a June 8, 2009 article “slaying” Canadian file-sharing myths, Michael Geist stated, “The law… opens the door to some legalized music downloading, but it does not cover other content (movies or software) or the uploading of any content.”

In response, Richard Pfohl wrote in a June 12 letter to the editor, “Downloading pirated music is not legal in Canada.”

Who’s right? Copyright lawyer Howard Knopf sorts it out:


So – copying unauthorized sound recordings obtained via P2P onto a 120 GB iPod Classic, for example, where the hard drive memory is permanently embedded (don’t even think about trying to take it out!) may indeed be infringing – because the iPod as a whole is a “device” and not a medium subject to the levy.

However, a PC internal hard drive that is not “permanently embedded” and particularly an external plug and play hard drive that is clearly not in any sense “embedded” in anything and serves no function other than to be a large memory medium may very well be “audio recording media.” In that case, downloading any sound recording onto them obtained in any way from any source for private use would be legal in Canada, regardless of whether a levy has ever been sought from the Copyright Board. This follows from what the Copyright Board said in 2003 at page 20-21 of this famous decision [PDF] and, contrary to Mr. Pfohl’s assertion, no Canadian Court has ever ruled to the contrary.
[emphasis from Mr. Knopf]


That’s right: That dedicated music device you have? The one that comes with software for ripping CDs and is sold by Apple, owner of the world’s biggest music store? It’s copyright infringement to download music and put it on that device. In fact, it’s copyright infringement to rip your own CDs if you’re putting them on your iPod or other mp3 player.

But an external hard drive that can’t play back music? That’s not embedded media, so it may not be infringement to download or rip music and save it there. Such is the paradox of copyright law in Canada today.

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