Canadian Appeal Court maintains privacy right for file-sharers

June 2005

Record Labels, Music Publishers, Internet

The Federal Court of Appeal in Canada has upheld an earlier ruling that prevents record companies from forcing ISPs to hand over the names of suspected file-sharers without detailed consideration of privacy issues and substantial evidence. However the judgment is something of a mixed ruling, as the door is now open for record companies to launch new rounds of litigation. Labels have, in the ruling, been given a 27-page document that can be used as a set of guidelines for legal actions against file-swapper. It is described as a “roadmap of how to present file-sharing evidence in future”. The court ruled that the Canadian Recording Industry Association (CRIA) would require additional evidence to proceed against 29 suspected sharers who are said to have collectively made 43,541 tracks available for download. Federal Court Judge Konrad von Finckenstein ruled last year that the music companies had failed to make a clear case of infringement and a case that public interest outweighed privacy concerns. However the Court of Appeal have qualified this ruling and also did not agree with Justice Finkenstien’s rulings on the legality of downloading in Canada.

and Law Updates May 2004

IFPI COMMENT : The IFPI today welcomed the decision by Canada’s Federal Court of Appeal over the obligations of Internet Service Providers to identify alleged illegal music uploaders on peer-to-peer services. The Canadian recording industry appealed last month against the March 2004 court ruling that ISPs were not required to disclose subscribers’ names. The appeal decision largely overrules that earlier ruling, opening the way for a wave of new legal actions to be taken against illegal file-sharing in Canada. IFPI General Counsel and Executive Director Allen Dixon said: “The decision confirms that ISPs must turn over the names of infringing customers; that data privacy rules cannot prevent copyright owners from taking action against infringement, and that unauthorized file sharing is not legal in Canada. The CRIA added that it welcomed the decision clarifying the steps necessary to obtain disclosure of the identities of alleged large-scale uploaders and rejecting the findings of the motions court with respect to copyright law. The CRIA noted that the Court found that that artists and innovators “need to be encouraged to develop their own talents and personal expression of artistic ideas . . . If they are robbed of the fruits of their efforts,” the incentive to create disappears and that “Modern technology such as the Internet . . . must not be allowed to obliterate those personal property rights which society has deemed important. Although privacy concerns must also be considered . . . they must yield to public concerns for the protection of intellectual property rights in situations where infringement threatens to erode these rights.” 

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