Streaming illegally, buying knockoff products, copying movies and music on your cellphone…
Those are common activities today but are you actually violating the Copyright Act or maybe even the Criminal Code?
To answer that question, we’ll have to take a closer look at different forms of infraction.
As far as copyright legislation is concerned, there are three types of infringement:
- Direct infringement
- Authorization infringement
- Indirect infringement
1 — Direct infringement
To identify cases of direct infringement, we have to refer to section 3 of the Copyright Act, which gives exclusive rights to the copyright owner.
Under the Act, only the copyright owner (or rightsholder) is allowed to take certain actions: reproduce the work, make a sound recording, translate it, communicate it to the public by telecommunication, perform it in public and adapt it into another form.
As a result, anyone taking those actions without authorization from the copyright owner is committing direct infringement.
2 — Authorization infringement
A person may be found guilty of infringement if they unlawfully authorize another person to take an action reserved exclusively for the copyright owner.
For example, in the case Entral Group International Inc. v. MCUE Enterprises Corp, operating and making available a karaoke machine that contained illegally reproduced works constituted an authorization infringement because people were allowed to perform and use infringed works.
On the other hand, making photocopiers available in a library is not an authorization infringement, especially if signs are displayed near the photocopiers to indicate allowed uses. That particular situation was the object of the case CCH Canadian Ltd. v. Law Society of Upper Canada.
3 — Indirect infringement
Also known as secondary infringement, indirect infringement occurs when someone who owns an illegally reproduced work decides to sell, rent, distribute or export it.
That means someone who has a knockoff Louis Vuitton handbag is not actually guilty of infringement. However, if they decide to resell it even though they know it’s a fake, they’d be breaking the law.
In Canada, owning a counterfeit object isn’t illegal. What’s prohibited is selling goods that you know are counterfeit.
Am I guilty of infringement?
Let’s go back to the three activities mentioned at the start: streaming illegally, buying knockoff products and copying movies.
When you watch a series on an illegal streaming site, you’re not committing an act of infringement.
The same applies if you buy counterfeit goods such as fake Apple AirPods or a knockoff Longchamp handbag.
Even having a copy of a movie or song on your smartphone isn’t considered infringement under Canadian legislation, which allows certain works to be copied for personal use. But if you resell those copies or present them in public, you’d be guilty of infringement.
Although those actions may not always be illegal, they still have significant consequences.
Users visiting illegal streaming sites should keep in mind that the sites are set up and run by real Internet pirates. The sites could therefore contain links infected with computer viruses or could even steal your personal data.
That’s also what could happen when you download a movie or song from a peer-to-peer file sharing site such as BitTorrent or Pirate Bay.
Counterfeit goods also represent a risk. First, the product is likely to contain computer security threats or defects. Warranties are also not applicable.
If you’re using the product in a business context, it may be putting your organization at risk.
Undermining creative efforts
When TV series, movies, books or music are pirated, fair compensation isn’t being paid for the work done by the creators of that content.
Whether the content was created by independent individuals or major corporations, it probably required major investments of time and money.
Even when you buy knockoff products, you’re not fairly compensating all the efforts invested in producing the object and building the brand that you value so much.
Who’s liable for the infringement?
Primarily for logistical reasons, Canada’s Copyright Act was drafted in a way that ensures that individuals who buy or access illegally reproduced works are not committing a crime themselves.
The logic is that it would be far too difficult to prosecute all those people individually!
The infringement described in the Act therefore applies to people who allow the transmission of illegally reproduced works: importers, sellers, webcasters, renters, etc. The persons actively infringing are committing a crime under the Act.