CRIA Granted Leave to Intervene in iPod Levy Case But Court Doesn’t Want To Hear About File Sharing

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.


  1. CRIA membership
    I can see why the CRIA, as I understand its composition to be, would want to scrap the levy. If in fact they are not considered to be a Canadian recording company, then according to the CCPC’s website they are not eligible to collect monies from the levy. The Canadian artists that they represent, however, are. They wouldn’t get their cut of the action.

  2. CRIA gets the money ANYway!
    CRIA operates the Audio Video Licensing Agency (AVLA) which is part of the Neighbouring Rights Collective of Canada (NRCC). CRIA’s general counsel occupied the NRCC board seat at the CPCC board of directors table. CRIA abandoned that seat just recently in melding with its ‘about face’ and intervention about the iPod levy. Clearly, for ‘political optics’ reasons CRIA prefers to give the impression that they no longer support the blank media levy.

    But make no mistake, they (CRIA) will still accept and guard the MONEY for all practical purposes. The way the CPCC is structured to FLOW THE MONEY, NRCC/AVLA will still receive their cut from the CPCC collection plate. That $$s SUM is supposed to be forwarded (thru CRIA) to artists who are signed by CRIA’s major labels that qualify for CPCC monies. Needless-to-say, there has never been any public accounting as to whether the CPCC monies that CRIA controls actually get funneled down to those major label artists who qualify for the CPCC tax dividend, or whether the CRIA or the major labels take an administration fee along the way…

  3. The levy doesn’t affect retail blank me
    …that is, if you know where to shop. In the case of CD-R levies, big box computer stores will charge you for this tax, but I’ve seen some retail stores advertising and selling 50 CD-R spindle for under $10 for quite some time now, with some going to $7-8. There is no way the CD-Rs in those places were ‘taxed’ when the ‘taxes’ cost more than the products. When CRIA finally managed to yank the levy system, it will just formalize what retail stores have done to avoid this poor excuse of protection fee.