CRIA and Private Copying

CRIA is currently leading a coalition that includes Apple, Bell, Rogers, and Napster in opposing an application for a new tariff for online downloads (I briefly posted on Graham Henderson's appearance before the Copyright Board last week and his startling claim that he had not read Nielson SoundScan data months after he referenced that data in a speech).  The lead statement in the case includes a discussion of private copying, after CSI (the group seeking the tariff) sought compensation for the copies that consumers make from digital downloads.  CSI argues that the recording industry authorizes consumers to make those copies.

CRIA's response?  They say they do no such thing – "the Online Music Services do not 'authorize' any further reproduction of downloads by the consumer."  Rather, CRIA notes that: Consumers are permitted to make, under certain circumstances, private copies of musical works without the authorization of the rights holders. A private copying levy is collected from the sale of blank audio recording media, such as CR-Rs [sic] or CD-RWs, and the proceeds of that levy are distributed among the various rights holders. This includes the music publishers represented by CSI.

As such, CSI is not entitled to any compensation for the recording of a download onto a blank recording medium. The appropriate rights-holders are compensated for such a recording through the private copying levy. Any compensation to CSI for such a recording would result in double payment for the same right.

CRIA's discussion is focused on downloads for the online music services, yet for the purposes of the Copyright Act, there is no reason to distinguish between those services and peer-to-peer services.  The Act does not distinguish between source as it focuses solely on the right of consumers to make personal copies.  Indeed, the Copyright Board of Canada has already stated that:

The regime does not address the source of the material copied. There is no requirement in Part VIII that the source copy be a non-infringing copy. Hence it is not relevant whether the source of the track is a pre-owned recording, a borrowed CD, or a track downloaded from the Internet.

Consumers that copy music on to an audio recording medium (as defined by the Act) for their private use do so lawfully and with full compensation to the appropriate rights-holders.  Don't take my word for it.  Take CRIA's.


  1. A copy is a copy is a copy…
    A copy is a copy is a copy regardless of the source. This is the way the CRIA set up this system (they were the largest player and financier of getting this tax system up and running). It would seem now that the CRIA is fixated on the notion of entitlement, who is or who isn’t entitled to partake in the take and intent on erecting a smokescreen to shift attention away from ‘a copy is a copy..’ Oddly, it was this overblown notion of entitlement that got them where they are in the first place. They pushed for and GOT this federal tax that we all pay to the tune of $millions. Now, this decade-old consumer copy ‘right’ and freedom has become the single largest roadblock for the CRIA it its attempt to put into legal process (here) it’s ‘blame the consumer for our business model problem’ lawsuit strategy that is playing out in other countries. The group wants to wash their hands of the whole thing so they can similarly sue Canadians. Problem is: They can’t. In the meantime, Mr. Henderson probably rests easy at night knowing the CRIA continues to partake in the blank media levy take (through their AVLA division) and can still bank the ‘majors’ share of the money collected. At least this is one rock that doesn’t need to be hoisted over in their attempt to uncover new revenue streams in Canada… so it’s not ALL that bad for them!

  2. Russell McOrmond says:

    Music copyright is a mess
    I tried to make sense of some of this in a past article on the Theories of P2p legal theories. [ link ]

    It seems that the theory they are operating on for online music services is that there is someone “sending” the music (I would call that a communication by telecommunications, where CSI and SOCAN are owed a right of remuneration) and the recipient is making a private copy. All of the attempts to separate “streaming”, “downloading” and “p2p” into separate things is never going to work as, from the point of view of the network, they are nearly identical (packets are being sent between endpoints on an end-to-end network).

    Is this the beginning of the end for the debate? If the private copying regime was amended to allow for Section 19 remunerated communication by telecommunications, then the whole concept of music lawsuits would go away — one levy for publicly sharing/sending/streaming, one levy for keeping private copies.

  3. Bill Conlon says:

    Intermediary copies
    During the entire process of making a copy (to be written to a ‘levied’ CDR/W) an ‘intermediary’ copy is made on the hard disk drive, which to my understanding is supposed to be deleted after the final copy is made. Who pays the levy on the intermediary copy? When was it legal to store intermediary copies on volatile storage devices? The moment you select to share those files you are breaching your own security… and that is simply stupid. Finally, who in their right mind would want a music CD collection made up of CDR’s with homemade labels? (besides college students of course).

    Then try to explain to your BOSS why you are downloading music files using a P2P application on your lunch time explaining that it is for ‘personal use’ on a company computer… explain to him that you are NOT circumventing security and that no national security ‘secrets’ or company ‘financial information’ have been leaked out by your violation of the company ‘acceptable use policy’ and use of a P2P app.

    On my home network, I protect ‘windows’ based computers by use of content filtering, port blocking firewall and a proxy server. I bought and own the computers, and DO NOT want them destroyed by virii or hackers and I do NOT want my business info compromised. I also block ALL P2P apps on my network at the gateway and by use of the group policy editor on each ‘windows based computer’. The profiles are setup to be secure. Wherever possible, my PC’s use Linux or a MAC is in place. I have invested a lot of money in my computer systems and will not tolerate having those systems destroyed because someone wants to listen to music… My usage policy is simple, if you want to listen to music, go buy a CD.

    I admit to being guilty of oversimplification.