In 2004, the Court ruled the Board was wrong to conclude that the permanently embedded or non-removable memory, incorporated into a digital audio recorder or the device itself, was “an audio recording medium ordinarily used by individuals to copy music”.
In 2007, CPCC tried again and the Board was asked to determine whether the recorder itself was a recording medium as defined in the Act. It said yes in a long and well reasoned decision. The Federal Court of Appeal, once again on judicial review, overturned the Board. This time, the Court in six turgid paragraphs found its decision of 2004 dealt with the matter and was binding on the Board. I still wonder how the Federal Court of Appeal came to that conclusion when the question of whether the device itself was subject to a levy had not even been an issue in the previous decision and the comments of Noel J.A. were obiter and contained in what can only be called a “throw away line.” A throw away line that has had extreme consequences, not the least of which is at least 10's of millions of dollars in royalties that have not been paid to authors, composers and performers and threatens to destroy the private copy regime.
- Tariffs such as those sought by Access Copyright and SOCAN are not mandatory for users. This is based upon nearly eight decades of SCC jurisprudence that in turn reaches back to at least 1894
- The Copyright Board has considerable scope to set rates – including a zero rate where there is insufficient evidence to justify a tariff. But deference by the FCA won’t make the tariffs acceptable to the public if the tariffs are not sensible and timely
- The Copyright Board needs to be mindful of basic principles of statutory interpretation, including the basic and obvious axiom that international law must not be misused so as to misconstrue domestic law
- As attractive as the exercise may have been, and even by the generous standard of “reasonableness”, the Board was very unreasonable in its venture into the “vibe” of international law.