November 2, 2008 by Daniel Simard
The music industry which includes songwriters, performers, publishers and music labels, believes it is increasingly being shortchanged through technological advances, namely the internet and applicable software, which facilitate the sharing, transferring, dissemination of files and in effect, the pirating of copyrighted music.
A novel approach to addressing this concern, spearheaded by chief proponent on behalf of the major labels Jim Griffin, is to collect a flat fee from internet service providers (“ISPs”) in exchange for a blanket license for the use of all registered works.
The debate underlying this contentious proposition is the balancing of users’ and owners’ rights. Before we jump in, let’s have a glance at the pertinent law circumscribing this area.
First, the Canadian Copyright Act (“Act”) adheres to media neutrality of copyrighted works which is reflected in s. 3(1). Even though a work may be converted electronically and/or reproduced in a different material form such as a computer file it is still subject to the Act. As per the dicta of the Supreme Court, this clause specifically protects the rights of authors and users against technological evolution. Therefore, all unlicensed downloads of music constitute infringement.
Second, s. 27 covers secondary infringement. Its relevance in this case is the protection it provides against the distribution of music to the detriment of its copyright owners. Specifically, s. 27(2)(c) makes it unlawful to distribute, expose or offer for sale or rental, or exhibit in public, copyrighted works. Thus, copyright is infringed by distributing unlicensed music recordings in the fashion and manner the music industry is complaining of.
Lastly, discussion has arisen over the duty and role of ISPs to help prevent piracy. From the standpoint of corporate responsibility, it may be argued that they should be more accountable and vigilant in the battle against piracy. But as the law stands today, ISPs are well within their rights. For them to be culpable, they would have to be giving approval, encouragement and perhaps even entice users to file share. This is certainly not the case, at least not my ISP!
Getting to the crux of the matter, what it boils down to is artists and producers receiving just deserts and economic incentive for the production and continuance of their works. Although protecting “starving artists” is a laudable goal, members of society might be less sympathetic if they knew that much of the revenue is headed to the large record labels.
It must be mentioned that not every internet user downloads tunes. So why should everyone pay?
The major labels involved are still producing revenues in the billions and many of the artists are receiving compensation through ticket sales, merchandise and other endorsements. And users are being handed bills for listening to the same song on different mediums: Ipods, cell phones, CDs, etc.
It is quite possible that this is another example of big business trying to bypass what appears to be an unsatisfactory legal and enforcement regime to secure profits through an imposition of yet another levy.
Robertson v. Thomson Corp.,  2 S.C.R. 363