Federal Court of Appeal rules private copying regime is constitutional, but MP3 players now exempt

Special Update, Friday, December 17, 2004 Note: Due to the fast-breaking nature of this story, the December 16, 2004 issue of Canadian NEW MEDIA has been moved from the Decima Reports front page. To access Issue #22, please use the “CNM Archives” link to the left.The Federal Court of Appeal has dismissed two applications for judicial review of the Copyright Board of Canada’s controversial year-old private copying decision on the issues of zero-rating and constitutionality (CNM, Dec. 19/03), but did reverse the board’s decision in the matter of levies on non-removable memory. The court did not counter the board’s finding that the controversial zero-rating scheme that exempted some bulk buyers of recordable compact discs is illegal, though it ruled that it would not be illegal for the Canadian Private Copying Collective to waive charges of its own volition. The board will not have to offset the amount of such waivers, however, when setting tariffs for private copying. The court ruled, barely, that the private copying regime is a form of levy, and not a tax, and thus constitutional. Finally, the court ruled that the memory that is embedded in devices such as Apple Corp.’s iPod is not subject to the levy.The third decision will likely be the highest-profile since it seems to point to the elimination of personal computers from the private copying regime. Several controversial cases in recent months, including the CCH Supreme Court battle (CNM, March 17/04), and the decision by Konrad Von Finckenstein of the Federal Court of Canada to deny the recording industry access to the records held by ISPs that would identify over two dozen individuals accused of music piracy (CNM, April 2/04), have been seen to point to the legality of music downloading with the protection of the private copying regime. The Canadian Recording Industry Association has fought that interpretation of recent case law in public fora, and will likely cheer the decision since the exemption of PCs and other devices from the regime, combined with a widely expected new right of making available as part of current copyright reforms, could make both up- and downloading from peer-to-peer file-sharing networks in Canada illegal. The early opinion of experts contacted by Canadian NEW MEDIA on Thursday night indicates that the area will likely remain grey, and future cases against accused downloaders could hinge on such minutia as whether hard drives, for example, are built into computers at the factory, installed as consumer options when ordering, or installed externally. Canadian NEW MEDIA will have further details and comment in an upcoming issue.

Federal Court of Appeal rules private copying regime is constitutional, but MP3 players now exempt

Broadcast | December 17, 2004

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