Canada’s vacillation over private copying levy

The private copying levy is enforced by the Copyright Board of Canada where
a levy is imposed on purchases of audio recording medium within the meaning
of Section 79 of the Copyright Act. The Canadian recording industry
strongly pushed for this levy to be extended to the MP3 player devices and in 2004
legislation was introduced to extend a tax on the MP3 player to appease
this group but was then overturned by the courts in the case Canadian Private
Copying Collective v. Canadian Storage Media Alliance. This was introduced
in addition to the blank media levy, which applies to blank recordable
mediums such as CD’s was introduced in 1997 by Part VIII, “Private Copying”
addition to the Canadian Copyright Act.

However, recently the Canadian Recording Industry Association has been
resisting the proposed tariff on MP3 players including the iPod in the fear
that introducing this levy would encourage the users to believe that
downloading music is legal.

In this affidavit filed with the Federal Court of Appeal recently the
president of CRIA stated CRIA President Graham Henderson provides a roadmap
for the argument in his affidavit: “First, the Board has stated, in obiter
dicta, on several occasions that the Private Copying regime legalizes
copying for the private use of the person making the copy, regardless of
whether the source is non-infringing or not. Therefore, according to the
Board, downloading an infringing track from the Internet is not infringing,
as long as the downloaded copy is made onto an ‘audio recording medium’…

Third, in combination with the aforementioned obiter dicta in the Board’s
other decisions, the Decision [the iPod decision] could potentially be
interpreted to allow the copying of music files from any source – whether
legitimate or illegitimate – onto any type of device ordinarily used by
individuals to copy music, such as personal computers…”
(http://www.michaelgeist.ca/content/view/2238/125/)

It appears that the stance taken by the CRIA is based on the largely held
view in Canada that downloading music for personal use is legal, and it’s
apparent that the CRIA wouldn’t want anything to encourage this view, and
there is now doing a volt-face and actually opposing the levy so that
downloaders don’t go gung ho with a new found enthusiasm fuelled by the
perceived legality induced by this levy.

According to Geist, it is also apparent that a series of recent decision in
the years following the time when the levy was initially introduced, have
reinforced the belief that personal downloading is legal in Canada
(although uploading is not considered). Of course the CRIA does not believe this to
be true although it appears to accept the fact that the perception is out
there that it is legal. In fact, in a speech given by Mr. Graham Henderson,
President, Canadian Recording Industry Association in 2005 he strongly
makes his point : “But today it is very common to hear journalists and even
lawyers speak of the user’s right to make copies. Long forgotten is the
concept that the original copy needs to have been legally acquired by the
person making the copy. Long forgotten is the notion that the copy needs to
be for private and personal use, and not for distribution. I find myself
forced constantly to remind reporters that it is the Private Copying
Exception, not the Share Your Illegally Acquired Music With the World
Copying Exception. It was never contemplated by the drafters that the
language of their legislation would be twisted to allow for a world in
which people could steal CDs and make copies from that stolen product which would
somehow become magically legal. Yet this is exactly what has happened. We
now have a strange doctrine based on the idea that the “source” doesn’t
matter. You can illegally acquire music files, but compound the act of
infringement by making another copy and, presto, the subsequent copy is
perfectly legal. Share it with millions of strangers? Again, no problem,
this is conceived to be perfectly legal. It is a bizarre digital variety of
money laundering. Even our judicial community has proven susceptible to the
allure of preposterous notions such as this – so long as they are cloaked
inthe name of users’ or privacy rights.(http://www.cria.ca/news/090205_n.php)
The Canadian recording industry seems to be tying itself up in knots in see
sawing between wanting its coffers filled with the taxes and levies and is
at the same time fearing what the impact this strong advocacy towards
taxing the user is having on the public, and now is backtracking in an effort to
try and balance this perception.

One Comment
  1. I find the CRIA’s rationale for opposing the levy, that the Private Copying regime contributes to the perception that downloading music for personal use is legal, tenuous at best and counterproductive all-round. Firstly, the argument is a weak one because awareness of this levy in the general Canadian public is extremely low. Although anecdotal, in asking five other law students if they were even aware of this levy, not a single one had heard of it. Moreover, they were all of the impression that downloading music online without paying was illegal, and I suspect much of the general population shares this view. It is not the legality or illegality of downloading that is the primary challenge for the industry, but the fact that it has become socially acceptable regardless of its legality. As a result, the existence of the levy, and/or its potential extension to the Apple iPod, will have little effect on the public’s likelihood of downloading music for free from the internet.

    This brings me to my second point, that opposition to the levy’s extension is counterproductive to the CRIA and its stakeholders. Because the levy will not affect downloading frequency, by opposing it the Association is simply eschewing a revenue stream that it would not otherwise have. Moreover, with the seismic challenges illegal downloading is posing for the recording industry as a whole, the CRIA would be wise to embrace potential sources of income like the levy, rather than attempting a futile return to a bygone era.

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