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The Conservative Government of Canada's Policy Declaration of 2005 promised unequivocally: "A Conservative Government will eliminate the levy on blank recording materials." As of January 1, 2008 this promise remains online, now posted under a 2008 banner with Prime Minister Stephen Harper's name and image standing by it. Will the Conservatives keep this promise when they table new copyright legislation this year? They should. Keeping promises is my #3 recommended copyright resolution for the new year.

This is a difficult resolution to stick to because no doubt many promises have been made to many different people. Some are likely to be broken. For example, there are rumours that the Conservatives promised US Ambassador Wilkins that Canada would introduce reforms along the lines of the American DMCA. If true, that would raise a host of policy problems, some of which I'll comment on in my next post. But for now, let me point out that keeping that particular promise to the Americans doesn't require the Conservatives to break their promise to Canadians regarding the levy.

By replacing Canada's existing levy on blank recording media with a reformed fair dealing provision that allows time, format and place shifting of all copyright protected materials for private purposes, Canada can brings its laws into the 21st century. Under US law, shifting is already permitted as fair use. Israel, Singapore, Australia, the UK and many more forward-thinking countries have moved or are moving toward allowing shifting of all types of copyright-protected content. Many of Canada's most celebrated music creators also agree that it is unfair for consumers to pay twice to shift legally acquired content from one platform or one time to another.

Canada's current levy covers private copying of sound recordings of musical works only, for example copying music to blank audio cassettes or CDs. But in Canada it is very likely illegal to burn a backup of your DVD movies, use your TiVo to time-shift television programs, or scan your album's artwork into your iPod. Such a law is asinine and embarrassing. And arguing that nobody is likely to get sued over these technical infringements makes the current state of Canada's law more, not less, ridiculous.

The alternative to enacting a right of fair dealing for shifting is to solve the private copying problem by broadening rather than narrowing levies. I've written about some of the many criticisms of this approach in peer reviewed publications here, here and here, so don't plan to go over them all in detail again. In short, a broader levy is highly likely to cause more problems than it solves.

Next week Wednesday, the Federal Court of Appeal will hear arguments about the scope of the levy. We've been down this road before. In 2004, the Federal Court of Appeal overturned a Copyright Board decision imposing a levy on iPods and similar digital audio recorders. Despite the Court's ruling that "a digital audio recorder is not a medium," meaning it can't be subject to a levy, the Board subsequently decided to try again to approve an iPod levy. The Board also hinted that a levy could be approved to cover cell phones and personal computers next.

That's why the legislator ought to step up on the issue now. Would a Conservative Government agree with the policy choices latent in the Board's decision and intentionally expand Canada's existing levy scheme? I doubt it. But my concern is that this Government is doing so by accident, or by indifference. When it comes to private copying, Canada is stuck in limbo with a dysfunctional levy and no policy direction from Parliament about which way to move.

In its last decision on private copying, the Federal Court of Appeal stated at paragraph 164: "It is for Parliament to decide whether digital audio recorders such as MP3 players are to be brought within the class of items that can be levied under Part VIII." Yet because the Government has so far failed to fulfill its promise regarding the levy, high-tech companies and consumer electronics retailers have wasted what probably amounts to millions of dollars in legal fees fighting about a law that should have been fixed long ago.

It is past due time that the Conservatives acted on their promise to solve the problem of private copying in Canada. It can do so by replacing the piecemeal and controversial levy with a simple yet effective open-ended fair dealing provision. If a copyright reform bill is tabled without even addressing this issue, it will be a major disappointment for Canadians.