[IP] Canadian Recording Industry Pledges No Suits Against CD Buyers For Personal Copying
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: August 8, 2005 8:30:56 PM EDT
To: dave@xxxxxxxxxx
Subject: Canadian Recording Industry Pledges No Suits Against CD
Buyers For Personal Copying
Dave,
Of possible interest to IP -- the Canadian Recording Industry
Association yesterday published a public letter pledging not to sue
consumers who make personal copies of their CDs to their iPod or
computer hard drives. The pledge comes following a Canadian Supreme
Court decision to let stand an earlier case that generated doubt that
the copying was lawful in Canada. The letter is at
<http://tinyurl.com/d3ctp> [Toronto Star]
I've got some comments on the letter, arguing that it stands to
reason that this principle should similarly apply to those that
circumvent a TPM in order to make such a copies. Comments at
<http://www.michaelgeist.ca/index.php?
option=com_content&task=view&id=923&Itemid=85&nsub=>
The CRIA pledge coincides with my column (posted below) this week on
Canada's private copying system. I argue that while in theory the
private copying system provides consumers with the right to copy and
artists with appropriate compensation for that copying, it is time to
acknowledge that the system has failed and must be dramatically
reformed or scrapped entirely.
Toronto Star version at
<http://geistprivatecopyingfuture.notlong.com>
Freely available hyperlinked version at
<http://www.michaelgeist.ca/index.php?option=content&task=view&id=924>
MG
THE FAILURE OF CANADA'S PRIVATE COPYING SYSTEM
The private copying system, which establishes a levy on recording
media such as blank CDs in return for the right to make personal, non-
commercial copies of music, has long ranked as one of the most
contentious aspects of Canadian copyright law. Consumers dislike
paying what resembles a tax, retailers complain that it drives
business out of the country, and artists doubt its effectiveness in
light of the inexcusably slow rate of royalty distributions.
While in theory the private copying system provides consumers with
the right to copy and artists with appropriate compensation for that
copying, it is time to acknowledge that the system has failed and
must be dramatically reformed or scrapped entirely.
Private copying was added to the Copyright Act in the late 1990s
following 15 years of lobbying by the Canadian Recording Industry
Association. CRIA argued that home taping resulted in millions of
dollars in lost revenue each year. After several policy studies and
task force reports, the levy eventually made its way into Canadian law.
The levy ran into criticism from its inception. The Copyright Board
of Canada was faced with the unenviable task of setting the rate of
the levy. That process left virtually everyone unhappy. Some argued
that the levy was too high and thus encouraged consumers to avoid it
by buying blank media outside the country. Others maintained it was
too low and therefore failed to provide adequate compensation.
Moreover, consumers and businesses that purchased blank media for
purposes other than copying music plausibly argued that they were
effectively subsidizing those that did copy music.
The beginning of the end may have finally come late last month, when
the Supreme Court of Canada let stand a December 2004 Federal Court
of Appeal decision that affirmed the legality of the levy but
rejected an attempt to apply it to digital audio recorders such as
the Apple iPod. Since the Canadian Copyright Act does not feature an
exception to permit copying personal CDs onto an iPod, many argue
that the decision renders such copying illegal.
Incredibly, the Canadian government plans to further constrict the
rights enjoyed by consumers under the private copying levy. Bill
C-60, Canada's copyright reform bill, includes a provision that
allows the music industry to prohibit private copying on CDs that
contain anti-copying technologies such as those used on the latest CD
from the popular group Coldplay. This provision seemingly
contradicts CRIA's pledge in yesterday's Star that it will take no
legal action against consumers who legally acquire music and copy it
to their hard drives or portable devices.
Should this provision become law, Canadians would pay tens of
millions of dollars in levy fees, yet they would be precluded from
copying their CDs onto their iPods or, in the case of "copy-
controlled" CDs, making any private copies at all.
If that were not bad enough, the millions of dollars collected
through the levy does not appear to be making its way to Canadian
artists. Although the levy has generated more than $120 million over
the past five years, Canadian Private Copying Collective (the
administrator of the levy) has only distributed about 25 percent of
those funds.
In light of these developments, the Retail Council of Canada, along
with a group of leading retailers, recently notified the Copyright
Board of Canada that they believe that the levy should be drastically
reduced to reflect consumers' increasingly inability to exercise
their private copying rights. Moreover, they note that the music
industry should not collect collecting millions from the levy yet
simultaneously argue that it does not permit private copying on peer-
to-peer networks. In fact, the retailers even urged the Board to
replace the CPCC, arguing that has been "inexcusably dilatory" in
distributing proceeds to the intended recipients.
Industry Minister David Emerson and Canadian Heritage Minister Liza
Frulla have indicated that the government plans later this year to
consult on the future of private copying. With few remaining
supporters - even one-time private copying champion CRIA welcomed the
Supreme Court decision - change is urgently required.
One approach would be to expand the levy so that it better reflects
current copying practices. Using the model of several European
countries, the levy would grow in size, but so too would the rights
of consumers to copy both audio and video for personal purposes. In
fact, such an approach would provide the music industry with multiple
revenue streams since it would collect the levy for peer-to-peer
music file sharing, while also enjoying the benefits of a thriving
commercial download market.
However, given the opposition to the levy system, the better
alternative might be to simply drop it completely. In its place,
Canada could adopt a "fair use" provision that would allow consumers
to copy their own CD collection onto another device along with the
elimination of statutory damages provisions for such copying cases.
The fair use approach would match the U.S. model, where the recording
industry has acknowledged that consumers have the right to copy their
own CDs without reference to a private copying levy.
There is no question that the introduction of the private copying
system was intended to provide artists with compensation and
consumers with legal certainty. It has done neither. The time has
come to replace it with a fair use system that would be more
equitable to all Canadians.
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa, Faculty of Law
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
-------------------------------------
You are subscribed as roessler@xxxxxxxxxxxxxxxxxx
To manage your subscription, go to
http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/interesting-people/