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Federal Court of Appeal Kills iPod Levy

Howard Knopf reports that the Federal Court of Appeal took just 24 hours to render its decision in the iPod levy case, quashing the Copyright Board of Canada's decision to certify a tariff on iPods.  It was clear during yesterday's hearing that the court reacted favourably toward the argument that this case covered the same terrain as its 2004 decision that rejected the iPod levy.  Howard quotes the court as stating that

I read that case as authority for the proposition that the Copyright Board has no legal authority to certify a tariff on digital audio recorders or on the memory permanently embedded in digital audio recorders. That proposition is binding on the Copyright Board. . .

While this kills the application of the private copying levy to iPods (subject to a possible appeal by the CPCC), it also means that Canadians who copy music from their CDs to their iPods are not covered by the exception and thus arguably infringe copyright.  The issue therefore moves from the Federal Court of Appeal to Industry Minister Jim Prentice who must decide whether he will amend the law by creating a clear, uncompensated exception to format shift (as the United Kingdom has just proposed) or leave millions of Canadians in legal limbo.

23 Comments

  1. Prdesumably, the exception would apply just to lawfully acquired music, i.e. you format-shift tracks you have purchased?

  2. Jon you know what does it means. New or second hand CDs legally purchased (or stolen) you can prove you do have. Your rhetoric at any cost is sickening.

  3. #1 Yes I think such an exception should only apply to lawfully acquired music.
    #2 What about my legally purchased MP3′s? I disagree with the idea that I should have to prove I own anything. It is in my possession. That’s the way it is with physical property and that should be good enough with music. It should be up to the accuser to prove otherwise. Software should be be the same way too, but somehow it’s not.

  4. R. Bassett Jr. says:

    “#2 What about my legally purchased MP3′s? I disagree with the idea that I should have to prove I own anything. It is in my possession. That’s the way it is with physical property and that should be good enough with music. It should be up to the accuser to prove otherwise. Software should be be the same way too, but somehow it’s not.”

    That is again another part of the issue the DMCA does not cover. Technically, even though you have a valid COA software label and CD, if you do not have acopy of the reciept that has a line item indicating that you purchased the software, in the USA the software company can sue you and win.

    There are just so many problems with crafting laws around digital media, simply due to the nature of “property” itself. Regardless of what entities are involved, the laws must protect Canadians from being taken advantage of: the burden of proof MUST lay with the be on the plaintiff and that proof absolutely MUST be obtained within the bounds of Canadian law. Period. In the USA, defendents are being assumed guilty until proven innocent, with many choosing to pay heavy fines regardless of their innocence as it’s just easier. We cannot let that happen here.

  5. Yeah, but if it’s any music even if its stolen, then you just play into the hands of people who want levies.

  6. I hate to say it but i kinda wish it was passed. Not that i would ever use an Ipod but if it would protect ones right to fair use of music as well and protection from the kind of frivolous lawsuits that could be possible under a DMCA styled bill(IE 200k for each download/shared song). As well as compensating artists(assuming it goes where it should) it might be worth it. Not to mention it is kinda unfair to tax blank media like dvds or cdrs when they can be used for non copyrighted purposes. When music players tend to have more unpaid for mp3s then many of blank cds.

    Of course that might be just me that would rather pay a blank insurance like rate so as to not be sued by some big corporations that just want to make a quick buck with the excuse that artists are being robbed, esp when it tends to be them robbing the artists.

  7. Shame on you for failing to recognize and consider the rights of those artists, musicians and songwriters whose work is supported by the royalties they receive from the private copying levy. It\’s clear that when you argue for an \”uncompensated exception to format shift,\” you are only speaking on behalf of the consumer. How is that \”fair?\”

  8. There’s more to life than music. Fair. Nobody cares about fair. They just care about the money. All I know is I’ve been paying the CD levy to store my pictures and my files. How is that fair?

    The greed of the music industry is insatiable if teachers horded their IP in the same fashion we would still be in the stone age. You received payment with my purchase please don’t try to tell me where or how I can play the song.

  9. But teachers do horde their IP! Its called textbooks and some of them get a ton of money from this, especially if they ‘adopt’ their own texts which means their own students have to buy them.

  10. An “uncompensated” backup or media shift of purchased music is not uncompensated even if there’s no levy. The Musician got compensated when you first bought the music. To be further compensated goes against natural order as the musician has done no further work. You bought the right to listen to that music non-publically, and no amount of backups or media shifts constitute distribution or public performance. They’re convenience copies for listening or backup in case of damage.

    Next musicians will be wanting a cut on the sale of second hand CDs….

  11. I’m not sure I’d trust the copyright board to be able to distribute the proceeds of this proposed levy properly anyway. Without knowing even a rough estimate of the illicit copy distribution of every single one of several million available songs, they’d have no way of correctly establishing what percentage of the proceeds is due to any particular artist. They’re certainly not going to get those statistics from the general public, nor does it seem valid to evaluate an artist’s cut of the pie by referencing Top 100 lists, since those are almost exclusively big label. This levy, beyond treating all 33 million of us as prospective thieves, can *only* serve to line the pockets of the biggest names, while leaving the whole independent scene that needs it most out in the cold.

  12. The sad part is that the artist and consumer are the losers any way you slice it. The government takes the Copy Right Board’s recommendations as to what’s best without an understanding or having the foresight to see the consequences (intentional or unintentional). We have intelligent people that could be put on a board that would better represent all parties and then look at drafting a recommendation – TOGETHER. they could also pull consultants from other countries to get their take on Copyright. If the Copy Right Board doesn’t like that, they can leave the table and not be represented. It would be their choice! It is simple, the more perspective you introduce to the conversation the greater the output to a more fulfilled solution. I have no problem with putting these laws in place but don’t do it without truly having a plan into the future as well. The law had to be able to change with the rate of technology otherwise you will never implement a successful solution.

  13. Could the Industry Minister also decide just to extend the levy?

  14. Definition
    The ideas presented from every perspective are genuine; most realize that the idea of someone’s artistic creation should essentially have some “merit”, however the fact that is often overlooked is the most important indeed. What defines music? A repetitive drum line seems to be what present day music can not do without. As for contemporary classical music could be a quartet with piano and violin, etc. Where is the industry heading? Many of these music recorders finally put beauty in the eye of the beholder. Personally I love the sound of running water and nature. When recorded does this classify it as music? But when do you say that the one hand tapping of a “musician” could be classified as a song? If there must be copyright on all intellectual mediums of expression then how much altering should take place and would you buy my hour long recording of the sounds of our environment? If copyrighted then must you pay dollars to listen to ambient street noise with a one hand tap of a drum, separated in 4/4 timing ? ? ?

  15. Jon B: The Copyright Board does not collect or distribute the money from the levy, this is done by the Canadian Private Copying Collective (CPCC). The Copyright Board is asked by the CPCC to certify a given levy on a given set of mediums (CDs, iPods, tapes etc). The Board then hears arguments from both the CPCC and those who oppose the levy. The Board then rules whether or not the proposed mediums fall within the scope of those that can be levied under the Copyright Act. If so, they determine what rate should apply (after having heard arguments from both sides on this).

    While your argument still stands, it is not the Copyright Board that does this (in fact, I believe some people argue the Copyright Board should have more oversight over the collectives to help ensure fair distribution).

  16. Link to decision: [ link ]

  17. The advent of science progression should be the beneficiary and the collection for scientific endeavor to re-record all things worth knowing. However along the way some may bicker to the bitter end about one hour of music and some profit from noise. The critical point is when the total profit is collected by our scientific community. A new discovery to capture the world in its infinitesimal form to overlooked potential. Learning is free… My time to listen to your noise is not…

  18. I find the notion of the levy incredibly offensive. We live in a country that already taxes us more than it should. Now they want me to pay yet another levy/tax because some people steal music? People who steal music will continue to do so and this levy would only hurt the majority who don\\\’t. I am glad this levy is dead and hopefully it won\\\’t be resurrected. The whole idea is stupid.

  19. I believe that to fill all those gigabytes you must be then very rich or very smart :)

  20. Amir Kafshdaran says:

    Lawyer
    I certainly welcome FCA’s decision in quashing such a levy.

  21. Luckily, my mp3 player isn’t an iPod.. so I’m safe.

  22. Wow,it almost sounds like the government is illegalizing the internet. If it’s illegal to move copyrighted files/media from one device to another (ie. audio CD to mp3 player, audio CD to computer) than the internet itself will be illegal. When someone visits a website a copy of that website is moved from the hosting server to computer of the person looking at the website– HTML text, readable text, audio, video, images/graphics are all copied to the visitor’s computer– all of which is copyrighted material. Of course, there will be people saying “It’s obvious that if a website is on the internet than permission has been granted to make a copy of the webite to view it”– umm, no it’s not. When mp3 players and VCRs first came out people thought it was obvious that it was okay to copy music to listen to and TV shows to watch– apparently it is not– That’s why this website exists in the first place.

  23. Levy as a tool
    The levy in Canada has only come to the forefront because it’s a tool that has been used in legal arenas to avoid prosecution for what has been deemed ‘illegal file sharing’. Truth is, the levy was a bad idea before Napster came along and it’s still a bad idea. Funny thing is though, it’s saved us from going through what the U.S. has with the RIAA.

    The levy, once an annoyance to the general public, has allowed Canadians to escape unfair prosecution. Now, I say unfair because of the amounts that are being charged to Canadian who download music they haven’t paid for. Canadians who use P2P to download music for free should be prosecuted. But, the dollar values the RIAA is pushing in the U.S. are unreasonable. To avoid paying those life-destroying fees, most people in the U.S. have opted to pay a smaller, though still unreasonable fee. It essentially amounts to extortion and should not be allowed.

    Now that this ruling is in place, the record industry is one step closer to being able to do the same to us. Until proper legislation is in place (not C-61!), Canadians will be at risk of this happening. That is why, in my opinion, we should not only be trying to kill C-61, but we should be pushing for fair legislation. (As Michael is already).

    Until then, you can squak about it all day, but that levy has saved us from getting caught up in the mass extortion going on in the U.S. and we should (ironically) be thankful for it.