Brent Randall is a JD candidate at the University of Ottawa.
The Canadian Private Copying Collective (CPCC), recently proposed a levy on electronic memory cards that would collect between $0.50 and $3.00 on each sale depending on their capacity. The existing tariff on recording media like blank CDs would remain the same.
The CPCC is the collective society responsible for the collection of the private copying levy and the distribution of those funds to those authors, performers and makers of sound recordings that are represented by the groups comprising the CPCC. Collective societies are groups that represent and ensure the rights of copyright owners. This power is referenced in the performer or maker’s right to remuneration under section 19 of the Copyright Act. The CPCC is made up of several collectives, including the Canadian Mechanical Reproduction Rights Agency (CMRRA), Re: Sound, the Société de gestion des droits des artistes-musiciens (SOGEDAM), the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) and the Society of Composers, Authors and Music Publishers of Canada (SOCAN).
The suggested levy rates are $0.50 on a card with 1 gigabyte of memory or less, $1.00 for cards between 1 gigabyte and 8 gigabytes, and $3.00 on each card with 8 gigabytes of memory or more. The current levy rate on other blank media is $0.29 per CD-R or CD-RW. This levy is provided for in section 82 of the Copyright Act, with the amount set by the Copyright Board.
The term “electronic memory card” is not defined in the tariff, but is included in the definitions as an example of a “blank audio recording medium.” This definition will be important for determining how broad the tariff may reach. In a press release, the Chair of the CPCC, Annie Morin, stated that “…the evidence now shows that electronic memory cards are ordinarily used by Canadians to copy music.” Presumably, this same evidence would be useful in determining what types of memory cards would be subject to the tariff if it survives any objections that may arise. Objections to the tariff can be filed with the Copyright Board of Canada until July 13, 2011.
In a backgrounder on the proposed tariff, the CPCC cites data indicating that between 2010 and 2011, 18% of Canadians surveyed copied something onto electronic media cards, with 16% of that content being music. The CPCC believes that “a copy is a copy” regardless of the way it is done, and feels that the evidence they have presented justifies the adoption of the proposed levy for memory cards.
Michael Geist and Howard Knopf have voiced their opinions against the proposed levies. Both Geist and Knopf feel that memory cards are not used as much for copying music as the CPCC argues, and as such, do not justify the levy. The Retail Council of Canada weighed in as well, calling for the end of the private copying levy in general.
The CPCC also continues to be at the center of the debate surrounding an “iPod levy” which has yet to be adopted (see here for IP Osgoode articles on several levies, including the iPod levy). The CPCC insists, however, that the proposed memory card levy is not connected to the continuing efforts toward a levy on MP3 players. Michael Geist seems to see some connection to similar goals, stating that “[e]ven without iPod levies, there is still room for the [CPCC] to expand the levy system…within the current legal framework.” It will be interesting to see in the coming months whether the Copyright Board sees a connection as well, and if so, how that will determine the fate of the proposed tariff.
If they are to extend this levy to memory cards they probably should consider the flaws in this system. Looks like the levy only applies to sellers in Canada and importers. It does not seem to empower the CBSA or any administrative agency to charge the levy when a Canadian traveler imports it for personal use.
Currently plenty of Canadians are traveling to USA to shop on a regular basis. This levy will be a significant blow to retailers and distributors because it will ENSURE that Canadians will not buy these items locally.
Do you think that Canadians would realistically travel to the US for the sake of saving, at the most, $3 on a memory card?
While I think Canadians would certainly want, if they can help it, to pick them up when they are in the US, I don’t know if memory cards are the kind of thing that you’d wait a significant amount of time to purchase. Personally, I go to the US maybe twice a year. If I wanted a memory card for my camera, I’d probably not want to wait until then to pick one up. Shopping on-line at an American retailer that ships to Canada would be a different story, but we can only speculate as to whether the levy would apply to those purchases or not.
I think, however, that this could strengthen the side that criticizes the levy. Memory cards are the type of product, and the levy is of the amount that people will likely just pay it even if they disagree with it. Of course nobody likes to part with their money, but we see the principle in it – if people are grudgingly parting with more money because of the levy, that may indicate the focus of the levy is misguided.
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