CRIA Applauds Australian Kazaa Decision
In a press-release today, the Canadian Recording Industry Association (CRIA) welcomed a Federal Court of Australia ruling that effectively outlaws the Internet file-swapping operator Kazaa in Australia.
From a Canadian perspective, however, this same case might have had a very different outcome if tried under our copyright law.
For one, there is no “making available” right in Canada as there is in Australia (although such a right is proposed in Bill C-60).
Also, the Australian case relied on a test for determining authorization which was developed in an earlier Australian case called Moorhouse. However, the Supreme Court of Canada, in CCH v. Law Society of Upper Canada, explicitly rejected the Moorhouse test (see para. 41).
For more information on the Canadian perspective see Michael Geist’s blog entry. Professor Geist notes that under Canadian law, Kazaa would be entitled to presume that its services are being used lawfully consistent with its legal terms; and that the music industry might face a challenge trying to rebut such a presumption against a Canadian Kazaa.
Update: See the Globe and Mail’s just released coverage here - suggesting that Canada is a music piracy haven.