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.