Canadian Private Copying Collective

Another Cash Grab?

The Copyright Act is being reviewed by the Canadian Government and some Canadians are of course concerned that this will include an extension of private copying levies to cell phones and the possibility of websites being blocked for minor copyright violations.

Unfortunately the government has been pretty quiet about this since their December 17th, 2017 press release and I didn’t want to speculate. But a line in the sand needs to be drawn, regardless of what is and isn’t being considered in the closed door meetings they might be having with foreign lobbyists.

I don’t think cell phones should be subject to the private copying levy because streaming is the preferred method of obtaining music on this device according to Music Canada, some customers listening to radio on these devices. And the possibility of having my site blocked because I accidentally linked a site that decided to offer pirated music is just absurd but these kind of proposals have been made in other countries.

This isn’t about giving artists more of their dues but giving labels more money. And streaming is where the improvements are needed when it comes to royalties for artists, so I see no point in levying cell phone storage.

The Copyright Board proposed levying hard drives and microSD memory cards in 2014 but that propose was rejected because a “recording audio medium” is defined by Part VIII, Section 79 of the Copyright Act as “a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose”.

A cell phone’s primary function is communication, not the receipt, storage and playback of music. And this device is also used to take and view photographs and videos.

It makes no sense to levy this device for royalties for music and nothing else. And this slippery slope is not advantageous for consumers, who would object to paying levies for storing photographs, video and games on their new smartphone, or tablet.

I don’t like being gouged on data fees so I don’t listen to music, watch videos or play video games on mine now. And I seriously doubt i’d enjoy paying more for a newer model, for services I wouldn’t use.

Do we really want to burden the cell phone industry with this? And when it comes to blocking, this can be bypassed with Virtual Private Network services, so is the government going to go after those as well in the name of copyright?

VPNs are used by people who travel and use public wi-fi, for security reasons. Do we really want to loose access to this service over piracy? When a sharp decline in music piracy was observed in 2017 by Music Canada?

A form has been made available by Open Media to provide comments to the Standing Committee on Industry, Science and Technology on these issues.

Please submit this form and share this link and your opinions on social media before September 17th, 2018. Thank you.

Save on Music, Books and DVDs at Indigo.ca

New Blank Audio Media Tariffs Proposed

The blank audio media tariffs proposed for 2014 were published in today’s Canada Gazette and are as follows :

  • 29 cents per recordable compact disc (CD-R, CD-RW, CD-R Audio, CD-RW Audio)
  • 50 cents per microSD memory card with 1 gigabyte of memory or less
  • 1 dollar per microSD memory card with more that 1 gigabyte of memory but less than 8 gigabyte of memory
  • 3 dollars per microSD memory card with more than 8 gigabytes of memory

Of course the question remains on whether microSD memory cards are “ordinarily used by individual consumers” as an “audio recording medium“, as defined by Part VIII, Section 79 of our Copyright Act.

Personally I have yet to use these cards or any other non-embedded memory card for anything but photography and video. And I also know several individuals who use these cards in their netbooks as a storage medium for their documents. So I have serious doubts in regards to the claim that these memory cards qualify as “blank audio recording media“, especially those of a higher class.

I use class 10 SDHC memory cards for my high definition photography and videos, which are considerably more expensive than class 2 SD memory cards. And the latter is quite adequate for the recording and playback of 254 kbps music files.

According to the SD Association, MicroSD memory cards were manufactured for the mobile phone market. And though most mobile phones now record video in HD, a higher class of memory card is unnecessary for the playback of music on those devices.

Furthermore, mobile phones that include these memory cards at the time of purchase may contain ring tones, software and/or other data, which disqualify these cards as “blank“.

I suspect many memory card manufacturers and retailers will file their objections to these proposed tariffs, as they did in the past. But I also believe Canadian consumers who use these memory cards for photography, video and data storage should also voice their opinions on the matter.

Written objections to these proposed tariffs will of course be accepted by the Copyright Board until April 11th, 2012 at the following address :

GILLES MCDOUGALL
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9

Objections will be a matter of public record, so please be polite.

Thank you.

Makes You Think, Doesn’t It ?

Today the Ontario Superior Court of Justice has approved a settlement of $50.2 million dollars in the “Pending List” class action quit against the four major labels in Canada.

Appearently several years back several recording artists, composers and their estates had noticed their recordings had been released by these labels, with no licencing agreement or royalty payment.

From June 2007 to December 31st, 2009 countless compilations were released that included recordings that the major labels assumed were available to them without prior negotiation because they had assigned a royalty rate to these recordings.

Unfortunately the rights agencies that collected royalties on behalf of the artists found it rather difficult to confirm what was on these lists and coult not truly determine how much was owed to specific artists.

This of course eventually resulted in a class action suit in 2008 that alledged the labels had performed hundreds of thousands of copyright violations, that resulted in the unauthorised sale of recordings.

I find it rather interesting that the labels hindered the collection of royalties associated to this scheme whilst opposing private copying on the grounds that it would hurt artists.

Private copying does not enable the consumer to sell copies of the recordings.

Retail Council Wants Levy Scrapped

According to The Wire, the Retail Council Of Canada has formally asked the Conservative government to scrap the blank audio media levy.

The group had previously stated in a March 12th, 2010 press release that they oppose any extention of the levy, stating that it would disadvantage Canadian retailers. And in this press release they stated they believed this “anti-competitive tax should be repealed altogether” :

Retailers contend the levy system is obsolete in an age of rapid technological change and does nothing to support and protect Canadian artists.”

I agree. And strangely enough the proponants of the levy also agree because they’re constantly trying to levy the next technology by stating the previous technology is no longer being used to copy music.

In less than five years the current levy was made obsolete, resulting in the following question on the savethelevy.ca web site : “It’s 2011 … who uses CD-Rs to copy music anymore?”

Well, cell phones and tablets are now being used to play back music files and cloud services will stream music to these devices shortly in Canada, making mp3 player obsolete soon. But of course like the Retail Council of Canada I believe the CPCC’s arguements are fundementally flawed :

Retail Council of Canada calls for changes to the Copyright Act to provide an explicit exception recognizing that private copying for archival or backup purposes and for format shifting purposes by individuals of legitimately acquired copies of works or sound recordings and movies is legal. This should include private copying for such purposes as platform shifting, backup purposes, or the avoidance of obsolescence.”

Remuneration is not required from consumers that have purchased music from online music retailers whose formats imply use on portable music devices in which electronic memory cards can be placed or embedded. And individuals that make personal copies for private use from recordings they’ve purchased fail to qualify as distributors because the recordings and resulting copies remain in their possession, regardless of the format shifting involved.

Private copying in no way infringes copyright, as defined by Part III, Section 27 of the Copyright Act. And a levy is not required because royalties have already been collected from the sale of legally purchased compact discs or music files, from which the private copies are made.

The alledged prominence of piracy on the internet in no way make devices like mp3 players conform to the term “blank audio media”, as defined by the Copyright Act. And the Copyright Board have already ruled that memory cards also did not qualify in a December 12th, 2003 decision.

Levy On Memory Cards Proposed, Again.

The Canadian Private Copying Collective had applied for a levy on memory cards at the Copyright Board.

On March 31st, the CPCC has asked the Copyright Board to extend the definition of Blank Audio Recording Media to include memory cards so they can obtain up to $3 in levies per card from manufacturers and importers of this media.

Published in the supplement of the Canada Gazette on May 14th, the rates are as follows :

$0.50 on each memory card that is less than 1 GB
$1.00 on each memory card that is above 1GB but under 8GB
$3.00 on each memory card that is 8GB and more

Unfortunately for the CPCC the definition of what can be and cannot be levied is clearly defined in Section 79 of our Copyright Act :

“audio recording medium” means a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium

In respect to this definition the Copyright Board had ruled in December 2003 that the evidence presented to them had not clearly demonstrated “that these recording media are ordinarily used by individuals for the purpose of copying music.”

To store and play back music all one requires is a class 2, 2GB per second memory card. A higher class card is not necessary as it does not improve the sound quality of the recording nor the performance of the device in which this memory card is placed.

Class 4, 4GB per second memory cards were introduced to facilitate the storage of photographs whilst Class 6 (6GB/s) and Class 10 (10GB/s) memory cards were created to record and store high definition video.

The only Secure Digital card created explicitly for music is the SD-Audio format, so a blanket levy on all memory cards is inappropriate or justified.

That said, one then has to wonder why the proposed rates are quite low in comparison to their previous request.

In 2002 they had requested $8 per gig on memory cards according to the March 9th, 2002 edition of the Canada Gazette. But the Canadian labels the CPCC represent still claim that more and more people are copying music “illegally” to devices with memory cards.

It appears their proposals are inconsistant and somewhat arbitrary.

Perhaps they’re attempting to make the levy more palatable. But it makes no sense to reduce the levy whilst claiming there is more harm to the copyright holders since 2002, unless the proposed rate in 2002 was exagerated.

I believe in proposing this levy the CPCC are actually attempting to solicit a definition that enables them to levy the memory cards embedded in mp3 players.

After all, the term they used in the proposal was “electronic memory card“, which doesn’t distinguish embedded from non embedded memory cards. And they could attempt to argue that though most memory cards are not ordinarily used for music that memory cards that are embedded inside mp3 players are.

Technically such a levy would not be a mp3 player levy but a levy on the memory card inside the mp3 player, that they could repackage as a “compromise” during the upcoming copyright reform process.

But we’ll cross that bridge when we get to it. For now we can object to the levying of memory cards that we primarily use for our own photographs and videos.

The Copyright Board will be accepting objections to the “Statement of Proposed Levies to Be Collected by CPCC on the Sale, in Canada, of Blank Audio Recording Media for the Years 2012 and 2013“, as published in the May 14th, 2011 supplement of the Canada Gazette, until July 13th, 2011 at the following address :

GILLES MCDOUGALL
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9

613-952-8630 (fax)

Please note that these objections may become part of public record so it is preferable to address the issue politely.