The Copyright Board of Canada has released its decision on a series of motions contesting the latest attempt by the Canadian Private Copyright Collective to apply the private copying levy to iPods and removable memory storage cards. The proposed levy was challenged by the Canadian Storage Media Alliance and the Retail Council of Canada, who argued that the Federal Court had already struck down a previous levy on iPods (or more accurately digital audio recorders) as outside the Copyright Act. The CSMA and RCC argued that the Board had no jurisdiction to consider or approve the levy or alternatively that the CPCC should be prevented from proposing it.
The Board conducted hearings on the motions last month and has responded quickly with an emphatic rejection of the CSMA and RCC. Siding consistently with the CPCC, the Board has left little doubt that it believes that the earlier decision has not foreclosed the possibility of a levy on devices such as the iPod. In fact, the Board provides the clearest statement yet that it believes that the levy could be applied to any device, including cellphones and computers. At paragraph 70, the decision states:
CSMA expressed misgivings about the possibility that cellular phones and computers might end up being leviable. We see no inherent problem with this scenario. A thing that is ordinarily used by individual consumers to make private copies should not be excluded from the private copying regime for the sole reason that it has other uses. Indeed, all media that are currently subject to the levy can be used for purposes other than private copying."
The decision continues by stating that this interpretation is consistent with the intent of the Copyright Act and Parliament, concluding that "to rule that digital recorders are not audio recording media does not serve the purpose of the Act or that of Part VIII [the private copying provisions]. It instantly makes the conduct of millions of Canadians illegal, and even possibly criminal."
Today's decision will likely be appealed, though assuming it stands it will lead to new hearings on the private copying levy. Moreover, given the Board's view that the levy potentially applies to any device, including personal computers, it also provides further confirmation that peer-to-peer downloading is covered by the private copying levy. As I argued earlier this year (parts one and two), a levy to address P2P may make sense, yet the current approach, which could lead to levies on SD cards, doesn't work. If we're going to make P2P legal through a levy system, the system must (1) address both downloading and uploading; (2) consider addressing non-commercial use of content; (3) cover audio and video; and (4) more closely link the copying to those paying the levy. The government has yet to play its hand on this issue, but with the prospect of an unpopular levy and mounting pressure for a Canadian fair use provision, it will have to take a stand sometime soon.