Several postings have noted that Bill C-60, the last failed attempt at copyright reform, sought to link anti-circumvention with copyright infringement by only making it an infringement to circumvent for the purposes of copyright infringement (thereby preserving user rights such as fair dealing). There was a notable exception, however – private copying. By excluding private copying, the bill made it an offence to circumvent a TPM (such as a copy-control on a CD) even if the purpose of the circumvention was to make a private copy. The rationale behind the exclusion was that the private copying system is designed to be compensatory, with the rate reflecting the amount of copying that is actually occurring in the marketplace. Supporters of the private copying exclusion argue that if copy-controls become pervasive, the amount of private copying will decline and so will the private copying levy.
This is pure fiction.
So long as the private copying levy remains in place, the provision creates a right (as described by the Canadian Private Copying Collective) to make personal, non-commercial copies of sound recordings and anti-circumvention legislation should not be used to take away those rights. In the event of widespread DRM use, Canadians will undoubtedly still be left footing the private copying bill for many years as the Copyright Board seems intent on mediating the levy process by striking rates somewhere between competing proposals and the CPCC is unlikely to give up on the levy (indeed, the CPCC has acknowledged that even the levy on cassette tapes is unlikely to go away even though hardly anyone uses them to copy music). This week's release of a CPCC survey, which implausibly suggests that Canadians are comfortable with levy rates that comprise more than half of the retail sales price of blank CDs, serves to reinforce the absurdity of the current system where Canadians pay tens of millions in levy fees, yet cannot even copy music onto their iPods or avoid being wrongly labelled as pirates by the recording industry.
I have some sympathies for alternative compensation systems such as the private copying levy. However, the reality today is that the system is not working. To simultaneously collect on the levy while blocking the right to make personal copies on CDs through a combination of copy-controls and anti-circumvention legislation is simply wrong. While the best course of action is to either fix or drop the private copying levy system, in the meantime, anti-circumvention legislation should include a private copying circumvention right that allows Canadians to make the personal copies for which they have already paid.