"Copyright law is a creature of statute and it does not assist the interpretive analysis to import tort concepts.
Under Act, subsection 80(1), the downloading of a song for a person's private use does not constitute infringement.
There was here no evidence that the alleged infringers either distributed or authorized the reproduction of sound
recordings. All they did was place personal copies into shared directories accessible by other computer users. The
judgment of the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada is authority for the
proposition that the provision of facilities that allow copying does not amount to authorizing infringement. How is
what was done here different from a library placing a photocopier in a room full of copyrighted material? In either
case the element of authorization is missing. McLachlin C.J. wrote in her CCH opinion that courts "should presume that
a person who authorizes an activity does not only so far as it is in accordance with the law"."
"Nor is there distribution absent a positive act by the owner of the shared directory, such as sending copies or
advertising the material's availability for copying. While the exclusive right of making available is covered by the
World Intellectual Property Organization Performances and Phonograms Treaty of 1996, it remains to be implemented by
Canada and so forms no part of our law of copyright. Again, secondary infringement had not been made out since
knowledge on the infringer's part, a necessary condition under subsection 27(2) of the Copyright Act, was not
demonstrated."
". . . copyright law is neither tort law nor property law in classification, but is statutory law. It neither cuts
across existing rights in property or conduct nor falls between rights and obligations heretofore existing in the
common law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set
out in the statute. This creature of statute has been known to the law of England at least since the days of Queen
Anne when the first copyright statute was passed. It does not assist the interpretive analysis to import tort
concepts. The legislation speaks for itself and the actions of the appellant must be measured according to the terms
of the statute."
Taken from:
http://reports.fja.gc.ca/en/2004/200...88.html?tag=nl