The objective of this thesis is to demonstrate, through analysis of the current Canadian Copyright Act and related cases, how the rapid development of Internet technology has challenged the legal protection of musical works under Canadian copyright legislation and jurisprudence. Canadian government and courts have begun contemplating these issues and attempted to formulate constitutional reform policies and effective measures for Canada. These initiatives related to copyright protection of musical works reflect a sophisticated analysis of each participant involved in music transmission through the Internet and are unique in this way. More flexible business mechanisms may contribute towards the achievement of a delicate balance between all the parties involved under the copyright umbrella.

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The Napster case has created a frenzy of controversy and confusion. The Peer to Peer technology developed by Napster creator Shawn Fanning, has forced the courts, the legislature, corporations, and individuals to reconsider the use of the Internet. Peer to peer networks create new challenges for the application of copyright law. However, these challenges are not that different from those which copyright law has evolved to accommodate in the past. Copyright law is intended to balance the interests of the creators and the public to promote the progress of science and useful arts. The premise behind copyright protection is to ensure that people continue creating, and that the public continues to enjoy those creations, through the mechanism of rewarding the creators with a temporary monopoly over their works. This balance of interests is fundamental to the interpretation of copyright law by the United States Congress and the Courts. This thesis focuses on the application and interpretation of copyright law through a case study of the law in the United States, in particular the Napster case. Although it now appears that the Internet can be subject to some form of regulation with the aid of technological innovation to enforce the regulation, the Courts in the Napster case have misinterpreted the previous judicial consideration attributed to copyright law. In essence, the fundamental principle of the balancing of interests has been lost. We are now left with an unequal balance in favor of large media conglomerates. It can be argued that the media conglomerates have used Napster as an example of their power to control the technology of peer to peer networking as a model of distribution. Napster demonstrates that peer to peer is an effective way of sharing information with an extremely large amount of people. This has the music industry scared, resulting in their legal battle to shut down the Napster technology. The claims of copyright misuse raise awareness of the need for regulation and a reassessment of copyright application in a digital age. There is a need for regulation. However, any attempts at further application of law and regulation to the Internet concerning copyright protection should consider the intent of the constitutional founders of the United States -- copyright law is intended to protect the interests of both the artists, and the public.

The Napster case has created a frenzy of controversy and confusion. The Peer to Peer technology developed by Napster creator Shawn Fanning, has forced the courts, the legislature, corporations, and individuals to reconsider the use of the Internet. Peer to peer networks create new challenges for the application of copyright law. However, these challenges are not that different from those which copyright law has evolved to accommodate in the past. Copyright law is intended to balance the interests of the creators and the public to promote the progress of science and useful arts. The premise behind copyright protection is to ensure that people continue creating, and that the public continues to enjoy those creations, through the mechanism of rewarding the creators with a temporary monopoly over their works. This balance of interests is fundamental to the interpretation of copyright law by the United States Congress and the Courts. This thesis focuses on the application and interpretation of copyright law through a case study of the law in the United States, in particular the Napster case. Although it now appears that the Internet can be subject to some form of regulation with the aid of technological innovation to enforce the regulation, the Courts in the Napster case have misinterpreted the previous judicial consideration attributed to copyright law. In essence, the fundamental principle of the balancing of interests has been lost. We are now left with an unequal balance in favor of large media conglomerates. It can be argued that the media conglomerates have used Napster as an example of their power to control the technology of peer to peer networking as a model of distribution. Napster demonstrates that peer to peer is an effective way of sharing information with an extremely large amount of people. This has the music industry scared, resulting in their legal battle to shut down the Napster technology. The claims of copyright misuse raise awareness of the need for regulation and a reassessment of copyright application in a digital age. There is a need for regulation. However, any attempts at further application of law and regulation to the Internet concerning copyright protection should consider the intent of the constitutional founders of the United States -- copyright law is intended to protect the interests of both the artists, and the public. / Law, Peter A. Allard School of / Graduate

The pilot study used in this thesis examined the attitudes and perceptions of a small group of students at the University of North Texas. The participants in this pilot study (n=22) were administered an online music file sharing survey, a Defining Issues Test (DIT), and participated in a small focus group. This thesis also outlined the history and progression of online music piracy in the United States, and addressed four research questions which aimed to determine why individuals choose to engage in the file sharing of copyrighted music online.

A study is done on the protection of sound recordings in the decentralized peer-to-peer (DP2P) file sharing in the United States, the United Kingdom and South Africa. This study reveals that because sound recordings have unique features different from other copyright works, the illegal sharing of sound recordings can ordinarily be filtered, identified, and detected by the Internet service providers (ISPs) before granting access to users and without infringing the users‟ right to privacy. However, the ISPs have failed in this regard, hence, they are strictly held liable under the contributory, vicarious and inducing infringements notwithstanding the statutory law which prohibits ISPs from monitoring, and intercepting their networks. In fact and law, the terms filtering, identifying and detecting on the one hand and monitoring and intercepting on the other hand are different in relation to sound recordings and as such ISPs are not prohibited from filtering, identifying and detecting illegal sound recordings on their networks, thus, ISPs are not protected under the limitation law as it is generally believed. However, several recommendations are made for reform, inter alia: a review of the limitation law to include the terms filtering, identifying and detecting in pursuance of the terms monitoring, and intercepting, if the intention of the legislators was meant to include the latter terms; protection of access right in digital sound recordings, protection of the neighbouring rights of ISPs in the digital world, imposing levies on all recording equipment, the insurability of sound recordings and ISPs‟ signals, and bandwidth. / Mercentile Law / LL. M. (Mercantile Law)

A study is done on the protection of sound recordings in the decentralized peer-to-peer (DP2P) file sharing in the United States, the United Kingdom and South Africa. This study reveals that because sound recordings have unique features different from other copyright works, the illegal sharing of sound recordings can ordinarily be filtered, identified, and detected by the Internet service providers (ISPs) before granting access to users and without infringing the users‟ right to privacy. However, the ISPs have failed in this regard, hence, they are strictly held liable under the contributory, vicarious and inducing infringements notwithstanding the statutory law which prohibits ISPs from monitoring, and intercepting their networks. In fact and law, the terms filtering, identifying and detecting on the one hand and monitoring and intercepting on the other hand are different in relation to sound recordings and as such ISPs are not prohibited from filtering, identifying and detecting illegal sound recordings on their networks, thus, ISPs are not protected under the limitation law as it is generally believed. However, several recommendations are made for reform, inter alia: a review of the limitation law to include the terms filtering, identifying and detecting in pursuance of the terms monitoring, and intercepting, if the intention of the legislators was meant to include the latter terms; protection of access right in digital sound recordings, protection of the neighbouring rights of ISPs in the digital world, imposing levies on all recording equipment, the insurability of sound recordings and ISPs‟ signals, and bandwidth. / Mercentile Law / LL. M. (Mercantile Law)