It seems someone discovered Part VIII and the associated Tariffs (current and proposed) : Jay Currie at Tech Central station wrote a piece titled « Blame Canada » which I was kindly directed to by Frank Field and Matt Morse.
Well, without getting into too much details, while downloading music might be covered by the Tariff, as it does not specify any source or support requirements for the sound recording , uploading without a proper licence is not.
The actual provision in the Copyright Act is
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.
As you can see, it’s a fairly narrow exception. One interesting thing though is that it is an accepted use: rights holders can’t assert a right over private copying. Hence it is not presented as defence to infringement. It is obviously not « expressly legal to share music » in Canada. And the Tariff does not make everyone happy either.
I must admit that since I use way way more CD-R for backup purposes than for copying music, I do feel I contribute more than my fair share to SOCAN and the CPCC. Therefore, the whole legitimizing file-sharing argument is tempting. But I’m also aware that my music tastes are very different from SOCAN’s pie sharing methods and I would very much prefer a better metric to evaluate right’s owners compensation if it becomes a de facto way to deal with file-sharing issues. After all this is about compensating the artists and my tastes over time do not follow Soundscan.
In the meantime, I feel like CDs are taxed like cigarettes or gas and that the « incumbent industry » is benefiting from a system that might otherwise foster a more diverse and rich offering than what this industry is ready to offer.
I am not generally opposed to compulsory licensing and/or tariffs but they are a delicate regularoty exercise that requires a clear policy vision and many checks and balances to be productive.
Another interesting nugget of Canadian copyright law is the Tariff 22. Controversial and challenged in court, it applies mainly to webcasting but might have an incidence on general filesharing.
[Update: Greplaw has a similar post]