Canada deems P2P downloading legal

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Canadian decision inconsistent with International Copyright Treaties

One may argue that this decision to make P2P downloading legal is inconsistent with the Canadian obligation to comply with:
(i) section 10 of the World Copyright Treaty of 1996 (provided that Canada ratified such Treaty);
(ii) section 11 GATT-TRIPs;
(iii) section 9.2 of the Berne Convention which provides for the same limit to the exceptions but solely in connection with the reproduction right.

This would still work in this latter case since downloading amounts to do a reproduction, and therefore would trigger the application of the aformentioned section 9.2 BC.

This may lead to a similar case as the one that opposed the United-States and Europe regarding the "Pork and Barrel" exception (exception regarding performing music in small restaurants and cafes). The United-States was obliged to quash this exception wich was considered to disrupt the normal exploitation of the work.

However, the prerequirement is to have a clear guidline that validating the P2P downloading disrupts the normal exploitation of the work. The first issue is whether P2P amounts to the exploitation of the work. In my view, it clearly is the new mode of exploitation in the digital age.


Alan Ragueneau
Alan.Ragueneau@droit.unil.ch


Section 10 WCT: Article 10
Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

Posted by: aragueneau   Posted on: 12/16/03 You are currently: a Guest | Members login | Terms of Use

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