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By Russell McOrmond 2/28/06 In a recent blog, Michael Geist suggested that, "the private copying right doesn't cover copying CDs to Apple iPods". This is one interpretation of the federal court decision (2004 FCA 424) which in part discussed whether there should be a levy on the storage media embedded in devices like an iPod. The Supreme Court dismissed an application to hear an appeal of this decision. The court discussed the connection between the definition of "audio recording medium" and the question of infringement. |
 Russell McOrmond |
[147] Although the CPCC maintains that the meaning of "audio recording medium" as defined in section 79 has no infringement implications, this is not so. If, indeed, digital audio recorders (or the memories embedded therein) fall outside the scope of the definition, copyright infringement could result from the use of such devices to private copy. Consistent with the proposition set forth in the above passage, the decision of the Board must be tested against the standard of correctness.
Section 80 of our Copyright Act specifies that the private copy must be to an "audio recording media". The lack of a levy on any specific audio recording media does not mean that it is not an audio recording media.
When discussing the term "audio recording media" the court said:
[139] The Board's exact reasoning for holding that memory permanently embedded in a digital audio recorder was levyable rests on the above quoted definition of an "audio recording medium". The Board said (Private Copying III, p. 33):
There are two aspects of [the definition] that are relevant to the Board in these proceedings. The first relates to the proper interpretation of the phrase "ordinarily used by individual consumers for that purpose". The second relates to the relevance of a medium's physical attributes ("a recording medium, regardless of its material form"), particularly the significance of its incorporation into a device.
The court clarified that it is this second question, and not the first, that is under contention.
Clearly it is possible to store audio in the media embedded within a portable device. While it may not be a levyable media, this does not excludes it as a valid destination for private copies of audio recordings.
If these are not private copies, are they regulated copies?
I believe we must go beyond asking whether the memory in devices are an "audio recording media", but to also ask whether any storage within devices are "copies" that are regulated under the act.
There is an assumption in the legal community that all electronic copies, whether in temporary (RAM) or permanent (Disk) memory within a device, are regulated copies requiring explicit permission from the copyright holder. This assumption must be examined and clarified both by the courts and by parliaments.
I believe that any "copy" that may exist within a device, whether permanent or temporary, should not be regulated by copyright. It is appropriate to make any communication to such a device a regulated act (whether reading from a tangible recording media or communication by telecommunications), but any copying within a device should be unregulated.
This understanding of the limit of regulated copies is necessary to clarify the legality of the regular functioning of these devices. We have never considered the communication of music over speaker wires (or within an analog stereo) to be regulated, and in the same way we should not consider copies within digital devices as regulated by copyright.
As far as I know, this critically important legal question has not been clarified by either the courts of by parliament. In order to avoid nonsense court decisions, or a chill on the creation and use of digital technology, we must clarify this situation.
Time to talk to your MP
I believe it is helpful to remind people of this important political debate around how technology should be regulated. People should be encouraged to write to their MP, especially the Conservative MPs who may be interested to follow through with their policy which stated that, "A Conservative Government will eliminate the levy on blank recording materials."
The need for intervention by parliament was also discussed by the federal court:
[164] In my respectful view, 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. As Part VIII now reads, there is no authority for certifying a levy on such devices or the memory embedded therein.
Russell McOrmond, the editor of Digital Copyright Canada, is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons).
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