Polls suggest opposite views on file-sharing as advertising or piracy

Many adult Canadians disagree with a recent federal court ruling that suggests sharing music over the Internet is legal, according to a newly released national poll. The phone survey says that the majority of respondents believe online file-sharing does violate the rights of composers and musicians. Conducted in April, a POLLARA survey asked 1,350 adult Canadians if it is a violation of composers and artists rights "when an Internet user makes copies of thousands of music files available to others anywhere on the Internet." According to the poll, 63% of adult Canadians answered that this did constitute copyright violation. The results of the poll stand in contrast to the Federal Court of Canada’s March 31 ruling, in which Justice Konrad von Finckenstein said that uploading music onto a computer’s hard drive and putting those files into shared folders does not infringe copyright laws (CNM, Apr. 2/04). The case was a battle between the Canadian Recording Industry Association, which sought the identities of 29 Internet users suspected of music piracy, and a number of ISPs who fought to retain the privacy rights of their users. While the case did not cover the legality of file-sharing specifically, von Finckenstein did deal with the issue in his 24-page ruling. "The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying," Finckenstein wrote. Referencing the March 4 Supreme Court of Canada ruling in CCH vs. Law Society of Upper Canada, he drew similarities between putting music into shared folders and providing photocopiers in libraries. The CCH decision said that while photocopiers in libraries may or may not be used to break copyright laws, owners are not responsible if patrons do use the machines to infringe copyright laws (CNM, March 17/04). According to the POLLARA numbers though, it would seem that these rulings, which protect users’ rights over music owners’ rights, are out of step with the opinions of many Canadians. The majority say that sharing both music and books online breaks copyright laws. One of the problems with the survey, according to Internet consultant Russell McOrmond, is that no distinction is made between making files available on a computer, and a file actually being uploaded. He says that for copyright infringement to occur, uploading must occur. "Most people don’t know the difference between ‘making available,’ ‘uploading’ and ‘downloading.’ People assume that ‘if you build it they will come,’ if you make it available people will have downloaded it . . . Why not get rid of the ‘assume’ and require that an upload actually happens," he asks. While the December Copyright Board of Canada decision on private copying did not decide in favour of music owners’ rights either, the board’s December 12 decision that froze tariffs on blank media at the current rate, also suggested that uploading files online is illegal (CNM, Dec. 19/03). Standing in stark contrast to Finckenstein’s ruling, the board’s decision may reflect the public sentiment more accurately. "The exemption in section 80 applies only when a copy is made for the private use of the person making it…This means that making a copy of a CD…to give to one’s friend is still an infringing action, as it is not a copy for personal use. In the same vein, distributing this copy to friends online is prohibited," the board wrote. In the wake of these rulings and the public opinion poll, the non-profit Internet research group Pew Internet & American Life Project released a survey that asked 2,755 musicians and songwriters their opinion on music file-sharing. While the industry is deeply divided, the results also lean slightly in favour of file-sharing. For example, while 35% said file-sharing is "‘not bad’ for artists because they help promote and distribute an artists’ work," 23% said that it was "bad" because an artist’s work can be copied for free, without permission. Interestingly, though, 35% of respondents agreed with both. While the POLLARA public opinion poll suggests Canadians think file-sharing is harmful to musicians and composers, the Pew survey also outlines some of the benefits of sharing music online. It says,"As for their own careers, more of these artists say free music downloading online has helped them than hurt them . . . For instance, 35% of them say free downloading has helped their careers and only 5% say it has hurt . . . Only fractions of them cite any negative impact of downloading on those aspects of their work." The aspects referred to include concert attendance, CD and merchandise sales and radio-play of their songs. Both polls highlight the controversial nature of the file-sharing debate. Within the industry and the public at large there is a wide discrepancy of opinions, both in terms of whose rights should be protected and whether file-sharing has a positive or a negative effect on the music industry. In legal terms, the recent Canadian court rulings are building jurisprudence specifically for Internet copyright laws. Nothing is certain yet though, as both the Copyright Board decision freezing tariffs on private copying and Finckenstein’s ruling on protecting ISP users’ identities have been appealed. As these legal battles continue to climb their way to higher courts, one of the world’s most notorious file-sharing companies has decided the time is ripe to move north. Napster, which was bought out of bankruptcy in 2002 after losing a copyright infringement case against major U.S. record companies, will set up shop in Richmond Hill ON. Competing with Puretracks, a similar service that was launched in Canada last October, Napster says its services will be available to Canadians within months. That timetable may be jeopardized, however, by a recent music publishers copyright filing that would create substantial levies on downloaded music.

Polls suggest opposite views on file-sharing as advertising or piracy

Broadcast | May 14, 2004

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