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As the Copyright Board's hearings on music publishers' proposed "Online Music Services" tariff wrapped up, Michael Geist flagged an interesting sub-issue involving CRIA's stance on private copying. Well, CRIA isn't the only group trying to suck and blow at the same time. Check out what music publishers have to say about the future of Canada's private copying levy.

  

In these proceedings, music publishers argued that online music services authorize customers to make private copies, and should therefore pay for the right to do so. Objectors to the proposed tariff responded by saying that such copying is controlled by DRM systems and/or covered by the private copying levy. (Note that although they say that paying publishers for the right to authorize private copying would result in “double payment,” they failed to acknowledge their own implicit admission that this is precisely what happens when consumers pay online music services for the right to private copy.)

The music publishers’ response to this argument was that insofar as private copying rights are already licensed and controlled by DRM systems, that should be taken into account when setting the private copying levy. They said: “it is to be expected that, in certifying future private copying tariffs, the Board will account for the increasing prevalence of effective DRM systems in the Online Music Services market and adjust the levy accordingly.” Sounds reasonable.

 

But if you look at the latest private copying tariff proposed by the CPCC, which these same music publishers are a major part of, you'll find there is no “DRM discount” for consumers. [Clarification: although CPCC recognizes a 6% reduction for paid downloads, they claim other factors offset the discount so that, in the end, the rate would actually be higher than it is now.] The rates are proposed to stay exactly the same as they've been for the past 5 years. With would-be objectors dropping out of the private copying hearings scheduled to start next month, it seems like it will be up to the Board to bind publishers and their fellow members of the CPCC to the remarks they've made in the online music services proceedings. But the craziest thing about this whole situation is that the CPCC includes both the music publishers and the record labels that are objecting to this tariff.

 

In my view, the double-talk on this issue coming from all sides just confirms what my research has been suggesting for a while now: Canada's entire private copying regime is in desperate need of an overhaul. My latest work on this exact topic, a paper called "Locks and Levies", will be published this fall in the Denver University Law Review.