Is downloading copyrighted music for private use legal in Canada?

Question

In 2003, the Copyright Board of Canada released this opinion.

They held that downloading a music file for private use was okay, no matter the source:

There is no requirement in Part VIII that the source copy be a non-infringing copy. Hence, it is not relevant whether the source of the track is a pre-owned recording, a borrowed CD, or a track downloaded from the Internet.

However, they didn't really answer the question about whether the destination medium mattered:

It is, however, for the courts of civil jurisdiction to ultimately determine whether or not there is an infringement of copyright for private copies made onto a specific medium,

Is this still controlling? Was it affected by the Copyright Modernization Act? Has any court clarified whether certain destination media are outside of the private copying exception?

Answer 1

I'm not a lawyer; I'm not your lawyer.

I would interpret the Copyright Board's interpretation in relation to tariffs when musical works copied for private use only, as the document's scope does not appear to extend beyond that.

However, in BMG Canada Inc. v. John Doe, [2004] 3 FCR 241, a consortium of record industry corporations attempted to request confidential ISP account holder information. Essentially, the plaintiffs failed to bring adequate evidence to prove the magnitude of copyright infringement; additionally, it is specifically stated at [24-5] that:

Subsection 80(1) [as am. by S.C. 1997, c. 24, s.50] of the Copyright Act provides as follows:
80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of
(a) a musical work embodied in a sound recording,
...
onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance, or the sound recording.

Although the Copyright Modernization Act, did, in fact, introduce a number of amendments, Subsection 80 still reads as it does when the BMG case was decided. Since this case, I can find no court that has found this ruling to be invalid, and no cases which have considered and not applied this subsection.

There is also Subsection 29.22 (1) (which applies to all works):

29.22 (1) It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if
(a) the copy of the work or other subject-matter from which the reproduction is made is not an infringing copy;
(b) the individual legally obtained the copy of the work or other subject-matter from which the reproduction is made, other than by borrowing it or renting it, and owns or is authorized to use the medium or device on which it is reproduced;
(c) the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented;
(d) the individual does not give the reproduction away; and
(e) the reproduction is used only for the individual’s private purposes.

Subsection 80(1) creates a special exemption purely for musical works, and so the less restrictive conditions there should be found to apply to them instead.

On the basis of the case above, and my consideration of the Copyright Act, I would find that reproduction of a musical work does not constitute copyright infringement, pursuant and subject to s 80(1) of the Act.

Answer 2

I'm going to focus on the destination medium, which has been a contentious issue. Persuant to §80, the copy must be made onto an audio recording medium, which is defined broadly as:

[...] a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium;

What media qualifies has an interesting history.

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First, the Copyright Board did in fact discuss the destination medium in the document you cite. When they state:

It is, however, for the courts of civil jurisdiction to ultimately determine whether or not there is an infringement of copyright for private copies made onto a specific medium,

they are merely commenting on jurisdiction. The Copyright Board is a regulatory body, not a court.

As a regulatory body they make regulations as authorized by legislation. In particular when setting levies on blank audio recording media, as authorized by §83 of the Copyright Act, they must consider the above definition.

In their decision, based on their reading of "audio recording medium", they accepted a proposed levy on CDs and memory permanently embedded in a "digital audio recorder" (MP3 player) but rejected a proposed levy on DVDs and removable memory^{part III B}.

However, industry members took this decision to court, where the Federal Court of Appeal upheld most of the Board's findings, but overturned the levy on the embedded memory saying:

[160] A digital audio recorder is not a medium; the CPCC [levy proposer] recognized so much when it asked that the levy be applied on the memory found therein but not on the recorder itself. The Board erred when it held that it could certify a levy on the memory integrated into a digital audio recorder.

Later, the CPCC considered the "digital audio recorder is not a medium" statement to be obiter, and attempted to have a levy imposed on digital audio recorders. The Board agreed, though the court reaffirmed itself.

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Separately in 2012, a regulation was introduced specifically excluding MicroSD cards from the definition. This is the last action on the definition that I'm aware of. In particular, I don't think it's been determined yet if hard drives fit the definition.