American college students aren't the only ones downloading music and movies. Canadians have been downloading 134 million songs per month since the Federal Court in Canada legalized peer-to-peer file sharing in March 2004. The decision in BMG v. Doe (see sidebar) marked a low point for copyright holders in general and the domestic recording industry in particular, which claims it lost more than $300 million to illegal downloading between 1999 and 2004. It's no surprise then that the Canadian music industry is clamoring for the federal government to strengthen the Copyright Act. The government offered several proposals to bolster the Act in March 2005, which, if passed, would go into effect this summer.
"We have been lobbying the federal government to bring the Copyright Act into the modern era for the past 10 years," says Richard Pfohl, general counsel to the Canadian Recording Industry Association (CRIA), which represents the producers, manufacturers and distributors of more than 95 percent of all records produced and sold in Canada.
In other words, copyright holders will have no recourse against individuals who download copyrighted materials, as they do under the DMCA; their remedies only will be against the individuals who originally uploaded the materials to a peer-to-peer service or a Web site.
Similarly, the Canadian proposals regarding tampering with copyright protection measures don't go as far as American measures. The Canadian proposals link anti-circumvention prohibitions to actual copyright infringement; the United States prohibits tampering outright. That means Canadians who remove or tamper with technological protection measures such as encryptions or passwords and rights management systems (for tracking the use and distribution of works) act unlawfully only if their action has the effect of infringement.
Wesley Ng, a senior associate at Stikeman Elliott in Toronto, believes that the notice and notice system will be effective.
"Peer-to-peer activity generally involves hordes of people sharing only a few files, and delivering a notice will likely scare enough people off to deprive the file sharers of their content," Ng says. "Certainly it will do so when the infringers are 14-year-olds, but even if they're not, this is Canada, and when people are put on notice, they obey the law."
BMG v. Doe: A Downloader's Delight