On November 7, 2025 three members of the Copyright Board of
Canada, including its Chair, have once
again “approved” a levy on blank CD-Rs and
CD-RWs of $0.29 each for the period of 2025-2027.
The revenues will go the Canadian Private Copying Collective
(CPCC) – which
has not posted any financial information about its revenues since 2017.
At least, the Board expressed a scintilla of scepticism this
time about the unopposed so-called “evidence” put forward by the CPCC and its veteran
perennial expert. But it didn’t stop the rubber stamp. Here is some of the
“reasoning”:
· [5] For the reasons below, we conclude that the evidence,
while not strong, supports our conclusion that blank CDs will be ordinarily
used to copy music during the years 2025, 2026, and 2027.
· [19] Mr. Gauthier states that 1.438 million units of blank
CDs were sold in 2024 and projects sales to decline to 1.274 million units in
2025, to 1.129 million in 2026, and to 1.001 million in 2027
· [23] Results from the Internet-based Music Monitor Survey
conducted in 2019 and 2021 showed a level of 30% and 27% of blank CDs used to
copy music respectively in those years. Mr. Gauthier concludes that the
proportion of blank CDs used to copy music has remained constant since 2019. He
asserts that this behaviour is unlikely to change within the next three years.
As such, he projects that the proportion of blank CDs used to copy music will
remain stable at 29% for the years 2025, 2026, and 2027.
· [25] Nevertheless, the Board considers that, even with a
gradual decline, the proportion of blank CDs used to copy music is unlikely to
have reached a point of marginality.
Here are the key dates and details for this rubber
stamping effort. Note that the filing date was October 10, 2023 – more than two
years ago. This proceeding was unopposed, as have been previous CPCC efforts after
2012. As the result of court decisions and intelligent regulations, virtually
all “memory” media and devices have been excluded from the levy, leaving only
blank CD-Rs and CD-RWs that are supposedly “ordinarily used” according to the
Board’s contorted and bizarre logic to copy music. It hasn’t been worth
anyone’s time and expense to oppose the blank CD-R and CD-RW levy since 2012,
because the market for them is so small.
I am proud to have been active in the past at the Copyright
Board and to have successfully argued in the Federal Court of Appeal on behalf
of major retailers that there should be no levies on memory used in devices
such digital audio recorders, cell phones, iPods (remember those?), or
computers. See Apple Canada Inc. v. Canadian Private Copying Collective,
2008 FCA 9 (CanLII), <https://canlii.ca/t/1vcx1>. The then
Chairman of the Board, William Vancise, was very upset with this result and very
inappropriately, IMHO, publicly explicit about this and other issues even while
he was serving as Chair of the Copyright Board. For example, here’s the text of his outspoken 2009 speech.
Fortunately, subsequent Chairs of the Copyright Board have been more
circumspect and judicious. Here are my 2023 comments about Vancise’s 2018 paper
presented at Columbia Law School in 2017, after he had retired but while he was
still deliberating his last decision, which took him four years. This comment
also deals with more general issues regarding the Board. To Justice Vancise’s credit, he did, in his 2016 speech, explicitly castigate Music Canada for its “completely
unacceptable and totally inappropriate” lobbying attempts aimed at his
successor Chair of the Copyright Board.
I was also active in arguing that intelligent regulations
were needed to prevent the Board from imposing levies on MicroSD media and
other type computer memory. Regarding regulations, former Minister of Canadian Heritage James Moore
was also helpful and transcended the usual bureaucratic and legal fog in that
department that protects collectives.
But, like a zombie, the CD-R and CD-RW levy still persists and
lurks amongst us more than a dozen years after the last opposed hearing. The untested
“evidence” looks frankly very flimsy, or at least counterintuitive. Does anyone actually know anyone who has actually
bought blank CDs in recent years, and in turn used them to record music?
·
When is the last time anyone has seen a desktop
or laptop computer being sold with a built in CD player/recorder?
·
Why would any rational person use a blank CD
anymore to record music, unless for example they own an old car with a CD
player that can somehow play or store music loaded on CDs?
·
For anyone wanting to move MP3 music files
around for whatever reason, a flash drive is much more useful and cheaper to
use. They are easily available for less than $10 for 64 GB of memory.
I suspect that the only reason the CPCC continues to exist
and that the Copyright Board continues to rubber stamp its miniscule levies is
to keep the CPCC on life support while it waits for better days under a potentially
gullible government. Levies were all the rage for a while in the early days.
But the music levy bandwagon has long since imploded. The music industry is now
all about streaming, amidst allegations of much mischief and manipulation
within the music business itself. What else is new?
The Copyright Board should put away its rubber stamp that it
uses for this zombie levy. If the Board is going to continue to exist, this
file is a real embarrassment.
And when the Copyright Act is opened for serious
revision, the blank audio recording media levy scheme should be repealed.
HPK
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