Friday, May 27, 2011

Attacks on the Memory Tax

There are already serious attacks on the CPCC’s proposed memory tax.

Here’s a good a good take from Techdirt.

There are several others.

Here’s a well researched article in Canada’s WireReport, which is a hot new publication I highly recommend to anyone in the media, communications or copyright business.

The article confirms that my client, the Retail Council of Canada, will fight hard against this tax and to repeal the levy scheme outright.

The article quotes CPCC spokesperson David Basskin as saying:
“That would mean that every copy people made would go back to being an infringement,” he said.
“The thing about Part VIII is that it legalizes the private copies in exchange for a levy. If the government wants to recriminalize making private copies, it sure doesn’t sound to me like a good idea.”
This is seriously misleading and just plain wrong for many reasons. For example,

Graham Henderson of CRIA, the main spokesperson for the big four record major companies, which are among of the main stakeholders in the CPCC, and to whom Mr. Basskin must answer in their huge publishing capacity, has specifically encouraged the making of private copies of legitimately owned recordings onto non-levied hard drives and iPods under the existing law. If such copying is OK on unlevied iPods (which have an obvious connection with music) and unlevied hard drives (which many consumers use for music), then why try to tax memory cards, any use of which for music is  minimal if not negligible?

One cannot "recriminalize" something that was never "criminal" to in the first place. Under no circumstances has the mere making of private copies ever been a criminal offence under existing law.   Nor was there anything in Bill C-32 that would have made it an offence.

In fact, Bill C-32 would have legalized format shifting of copies already owned by consumers. It goes without saying that it would not be “fair and equitable”, as required by the Copyright Act, to levy or tax activity that is expressly legal. How many times must a consumer pay for the same music?

And what about the downloading of unauthorized copies?  If Mr. Basskin is admitting that Part VIII of the Copyright Act makes this legal at least with respect to any audio recording medium, many including me would agree with him. But he has colleagues in the music industry who won’t admit that the levy legalizes copying irrespective of the source, although they are happy to cash the resulting cheques.

If this matter proceeds to a hearing at the Copyright Board, it will be expensive not only for objectors but for CPCC members. As the end game is now being played out on levies in Canada, is it really worthwhile for the supposed beneficiaries of the existing levies to spend a fortune on a Hail Mary baseless attempt to expand the levy to memory cards?

Rather than go through a very expensive hearing  to prove the very obvious point that any use of memory cards for recording music is truly minimal if not negligible,  the Government should make a regulation that excludes memory cards as recording medium. The Copyright Act expressly and wisely provides for just this possibility. This can be done in a matter of weeks. As I’ve explained before, there is ample precedent for precisely such interference in a pending proceeding - including interference by content owners to stop JumpTV before it could get started.

In the somewhat longer term, the next Copyright bill should simply repeal the tax scheme in Part VIII of the Copyright Act. The scheme was already obsolete in the good old mostly analogue days of 1997. It is no longer defensible or sustainable.


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