The Federal Court of Appeal on Friday granted CRIA's request to intervene in the private copying/iPod levy judicial review, a case that openly reveals the divisions between CRIA and the Canadian Private Copying Collective (CRIA is on the board of CPCC but the CPCC objected to its intervention request). CRIA's Graham Henderson identified seven objections to the Copyright Board decision:
- the Decision failed to consider the fundamental importance of exclusive rights in Canadian copyright law
- the Board failed to consider the implications of the combination of the Decision with statements in its prior decisions to the effect that the Private Copying regime legalizes copying for the private use of the person making the copy, regardless of whether the source is a non-infringing copy or subject to a levy.
- by broadening the scope of the exception to devices never intended by Parliament to be covered, the Board has potentially and inappropriately transformed the 'private copying' exception into a public license
- the Decision failed to adequately consider and apply policy principles related to copyright. Any decision or combination of decisions that exempts unauthorized P2P downloading from infringement would be contrary to the public interest because it serves as a disincentive to investment in the production of music and the dissemination of legitimate copies of music.
- the Decision failed to adequately consider and apply the specific policy principles behind the private copying exception.
- the Board was wrong to broaden the scope of the private copying exception to avoid making illegal file sharers liable for infringement.
- the Decision failed to consider Canada's international and bilateral treaty obligations related to copyright and related rights.
The Court summarily rejected CRIA's attempt to expand the private copying case by making these (largely incorrect) arguments about P2P downloading. Indeed, Federal Court Chief Justice Richard states:
I am of the view that any submissions by CRIA as an intervenor would not be necessary or useful with respect to any issues other than three main issues before this Court. CRIA may have a useful, new and different perspective to bring to bear upon these proceedings, provided that it is confined to the three major issues before the Court.
CRIA was therefore added to the case and given permission to file a 15 page memo and spend 20 minutes of argument on issues surrounding the digital audio recorders and whether they qualify as a medium for the purposes of the Copyright Act. Its claims about private copying and the legality of peer-to-peer downloading will have to wait for another day.