I noted last week that Bill C-61 creates a legal framework that means that consumers may buy a CD and pay the levy on a blank CD, yet still violate the law if they circumvent copy-controls in order to make a private copy of their purchased CD. There is a second private copying angle that merits analysis. The music shifting provision blocks users from shifting music to their iPod if they borrowed or rented the sound recording to be shifted. However, in what may be a case of bad drafting, the same provision appears to allow users to transfer borrowed or rented CDs to their iPod with one additional step that bring private copying into the picture. The process requires the user to make a private copy of a sound recording onto a blank CD. The private copying system allows for such copies from borrowed or rented CDs. The user then shifts the sound recordings from the private copied CD to their iPod.
This additional step would appear to meet the requirements of the law (Section 29.22(1)), namely:
- the sound recording is not an infringing copy (private copies are not infringing)
- the individual legally obtained the sound recording other than by borrowing it or renting it (the private copy version was legally obtained and is not borrowed or rented)
- no circumvention of DRM
- one copy per device
- no giving away the reproduction
- reproduction only for private purposes
While it is possible that this is the intent of the legislation, my guess is that the provision highlights the danger of an overly complicated statute that seek to account for every possible scenario. The reality is that drafters won't catch every possibility, which is precisely why anti-circumvention legislation has created so many "unintended consequences." The better approach on music shifting would be to drop this confusing and complex structure and rely instead on a flexible fair dealing standard as is the case in the United States.