Criminalization and the Canadian Copyright Regime

In Canada, infringing copyright for personal use is not a criminal act. The owners of the copyright can effectively sue “personal use” infringers in court, but these violations will not show up on the infringer’s criminal record. Until 2007, the only criminal copyright violations were the sale or rental of copyrighted material. In 2007, the Conservative government amended section 432 of the Criminal Code, making the recording of a film in a movie theatre a criminal act, even if it is done for the sole purpose of private use. Aside from this one exception, however, the infringement of copyright is not prosecuted by the state in Canada. What are the implications of this regime for the Canadian law of copyright?

The clear implication is that copyright in Canada is something less than a proprietary right. This is something of a trite point for those who have studied copyright law, but its implications in the copyright debate are far-reaching. Copyright lobbyists are increasingly using terms like “robbery” and “theft” to describe copyright infringement. While this kind of rhetorical flourish may add some weight to their argument, it finds no support in Canadian law. The only possible criminal infringement speaks to the purpose of the infringement, not the substance of it. It is the act of subverting another’s work and selling it for your own profit that attracts the moral disapprobation of the state. The crime isn’t in the copying itself but in the redirection of profits that the true author could have expected. It is the theft of these profits, not of the copy of the work itself, that attracts criminal liability.

Various copyright reformists want to expand criminal liability for copyright infringement and bring it more into line with the Digital Millennium Copyright Act in America, which criminalized the act of circumventing an access control on copyrighted works. The effect of this was to effectively criminalize a wide variety of personal use copying.

It is certainly true that the advent of the internet has made acts of copyright infringement far more widespread. The expense of litigation and the comparatively small remedies available for individual acts of copying virtually ensure that the majority of such infringements go unpunished. The criminalization of such acts would recruit state resources to aid in the prosecution of such offences. The threat of a criminal record would also almost certainly deter more people from committing an act of copyright infringement.

However, doing so would fundamentally alter the very nature of copyright law in Canada. If Canada is serious about maintaining the “balance” between authors’ rights and user rights, it cannot criminalize an act that has never been criminal. Doing so would create a property right out of something that has never enjoyed proprietary protections – the work itself. It would be fundamentally inconsistent with the very nature of Canadian copyright law.

It will be necessary to come to some sort of compromise so that copyright holders are not left out in the dark; however, criminalization of copyright infringement is not the answer. Copyright is a purely statutory right over the copying for a specific purpose of one’s work; it has nothing to do with property in the conventional sense. Copyright infringers are not “thieves” or “robbers” in any sense and do not deserve the moral outrage of the state. It is properly conceived of as a relationship between the author and the public and should remain so.