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If someone merely views copyright infringement material online through their browser, without downloading it, does Canadian law address whether this is copyright?

I know in the UK, the Supreme Court addressed this is 2013, in "Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors". The judge wrote,

"if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result..."

Is there a similar finding like this in Canada?

The closest I could find is the Copyright Act section 30.71, which reads,

30.71 It is not an infringement of copyright to make a reproduction of a work or other subject-matter if

(a) the reproduction forms an essential part of a technological process;

(b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and

(c) the reproduction exists only for the duration of the technological process.

But the ambiguity here is where the first condition says, "the reproduction forms an essential part" etc... One can argue that I can make my browser disable loading any images, so having potentially copyright infringement photos appear on my screen is not essential to the technological process.

And sure. The likelihood of one getting sued by merely viewing something online is next to zero. But I'm talking about the principle behind it. Because as the law stands, it seems to be that merely using social media will run afoul of the law, at least in principle.

Any thoughts?

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  • How does disabling pictures prevent you downloading the copyrighted text of a web page?
    – Dale M
    Sep 26, 2022 at 21:23
  • @Dale M - it doesn't. I just used pictures as an example since that is by far what's infringed upon in social media platforms.
    – Michael
    Sep 26, 2022 at 21:32
  • SOCAN v CAIP seems somewhat relevant to your question (although it was 18 years ago so doesn't reflect more recent amendments).
    – smitop
    Sep 26, 2022 at 21:49
  • If mere viewing is copyright infringement, then publishing is entrapment. Sep 27, 2022 at 2:48
  • Reproducing the image data on your display screen is an essential part of the process to display an image on a screen (i.e. to display any image, you need to copy bits of data at some level). See also this question about browser caching, which is similar: law.stackexchange.com/questions/2223/…
    – Brandin
    Sep 27, 2022 at 9:09

1 Answer 1

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In my understanding under Canadian law, viewing copyright infringement material online without downloading it is still considered an infringement of the copyright holder’s rights.

Act of Canada, R.S.C., 1985, c. C-42.

According to section 3 of the Copyright Act, copyright is defined as “the exclusive right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof”.

Section 27 of the Copyright Act states that “it is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do”. This includes viewing the material online through a browser.

Section 2 of the Copyright Act defines “reproduce” as “includes reproducing a work in any material form, and includes the making of a photograph or a facsimile of a work and the making of a sound recording or a cinematographic film of the work”. This definition includes the act of temporarily reproducing the work in a computer’s memory when viewing it online.

In conclusion, the Copyright Act of Canada, R.S.C., 1985, c. C-42, outlines that viewing copyright infringement material online without downloading it is considered an infringement of the copyright holder’s rights. This is in accordance with sections 3, 27 and 2 of the Act, which define copyright and the exclusive rights of the copyright holder, as well as the act of reproducing a work.

In the case of CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, the Supreme Court of Canada confirmed that viewing copyright-protected material online without downloading it is still considered copyright infringement. In this case, the Law Society of Upper Canada provided access to legal information databases without obtaining the necessary licenses. The Court found that the mere act of accessing the databases was a violation of the copyright holder’s rights, even though the information was not downloaded.

In another case, Robertson v. Thomson Corp., 2006 SCC 43, the Supreme Court of Canada found that temporary reproductions made in the course of viewing a website, including cached copies of images, can be considered copyright infringement. This case confirms that viewing copyrighted material online without downloading it can still infringe on the rights of the copyright holder.

As someone mentioned in the comments, the case SOCAN v CAIP (Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45) is relevant to the question of whether viewing copyright infringement material online without downloading it is considered copyright infringement in Canada.

In this case, the Supreme Court of Canada addressed the issue of whether internet service providers (ISPs) can be held liable for their customers’ infringing activities, such as downloading copyrighted material online. The Court held that ISPs can be held liable for copyright infringement if they provide access to infringing material, but they are not required to monitor their customers’ activities.

This case confirms that the act of viewing copyright infringement material online, whether it involves downloading or not, is considered copyright infringement under Canadian law. The Court recognized that the mere act of accessing the copyrighted material constitutes an infringement of the copyright holder’s rights, even if the material is not physically downloaded.

On the contradictory You should also look at the case Entertainment Software Association v. SOCAN, 2012 SCC 34 which is a Canadian case that dealt with the issue of whether the act of playing a video game that includes copyrighted musical works constitutes copyright infringement. The case was brought before the Supreme Court of Canada by the Entertainment Software Association, who argued that the act of playing the video game did not infringe on the rights of the copyright holders of the musical works included in the game.

The Society of Composers, Authors and Music Publishers of Canada (SOCAN), the copyright holder of the musical works, argued that the act of playing the video game constituted copyright infringement because it involves reproducing the musical works. SOCAN sought to collect royalties for the use of the musical works in the video games.

The Supreme Court of Canada held that the act of playing the video game was not an infringement of the copyright holder’s rights because the copyright holder had not lost control over the use of the work. The Court held that the act of playing the video game was not a “communication to the public” as defined by the Copyright Act, and therefore did not infringe on the rights of the copyright holder.

This case confirms that Canadian law recognizes that the act of viewing copyrighted material online without downloading it is not necessarily an infringement of the copyright holder’s rights. However, it also demonstrates that the specific circumstances of the case must be considered in determining whether an act constitutes copyright infringement.

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  • Very interesting, thank you. I wonder how we can use the internet or social media then, without running afoul of the law. Considering that people post memes, excerpts of videos, and images all the time, that are reproduced on our screen without the copyright holders permission. It would make using the internet without violating copyright practically impossible, which is pretty absurd imo.
    – Michael
    Feb 11, 2023 at 21:41
  • @Michael this answer shows that the court has decided, for example, "the mere act of accessing the copyrighted material constitutes an infringement of the copyright holder’s rights, even if the material is not physically downloaded." That doesn't necessarily imply that the person who accessed the copyright material is personally liable for the infringement. It is easy to imagine circumstances under which the party hosting the material would bear most or even all of the liability.
    – phoog
    Mar 8, 2023 at 12:02

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