Interestingly, the article quotes David Basskin of the Canadian Private Copying Collective, who says that it would be unfair for the government to stop the process before the Copyright Board of Canada has heard the case. Basskin states “it’s manifestly unfair. We have a solid case to make, and we look forward to making it. The matter is, as you might say, ‘before the courts.’ The Copyright Board has the power of a court.”
The Act also makes provision for the Governor in Council to limit the scope of qualifying â€œdevicesâ€ by regulation. Specifically, the definition of “audio recording medium” at section 79 of the Act permits the Governor in Council to prescribe by regulation that a particular type of “recording medium” is not an “audio recording medium”.
The process set out in the Act is one that would provide advance notice of any medium or device on which the CPCC wished to collect a levy. The CPCC must file a proposed tariff by March 31st of the year prior to the year in which the levy would come into effect. If the CPCC sought a tariff on a device deemed inappropriate, the Governor in Council could issue a regulation that prevented the Copyright Board from considering such a request. There is, therefore, no legitimate basis for fear that a levy would be imposed on all devices with a hard drive or on any device to which a levy should not apply.
In other words, the CPCC told the government it could use the power to prevent the Board from considering a request on a device deemed inappropriate. The question for cabinet is therefore not whether stopping the hearing is fair. It is whether it believes that expanding the private copying levy system to include microSD cards is appropriate.