Levies On Blank Audio Recording Media On The Outs In Canada

A recent decision of the Copyright Board of Canada (Board) signals that the phasing out of private copying levies on blank audio recording media in Canada is nearly complete. Since 1999, every manufacturer or importer of blank audio recording media has been required to pay a surcharge in the form of a levy to the Canadian Private Copying Collective (CPCC) – a cost which is collected from the consumer in the form of higher retail prices. The CPCC distributes the surcharge to rights holders as notional compensation for the anticipated private copying involving that blank media that would constitute infringement of those rights. The current list of blank audio recording media covered by tariff (through the year 2014) is limited to the CD formats CD-R, CD-RW, CD-R Audio and CD-RW audio (cassettes and MiniDisc were determined to be non-eligible once they were found to no longer be “ordinarily used by individual consumers” to copy music – in 2010 and 2011, respectively). For ten years, the CPCC had unsuccessfully pursued a tariff on memory cards as a form of blank audio recording media. Recently, the pursuit was narrowed to a proposed levy on microSD-type memory cards. However, the future expansion of tariffs beyond the CD format was soundly quashed by the Government with the registration of the MicroSD Cards Exclusion Regulations, which excluded microSD memory cards from attracting levies as a blank audio recording media beginning October 18, 2012. As a result, the decision faced by the Board was limited to the narrow question whether to certify a retroactive tariff on microSD cards for the only eligible time period: January 1 to October 17, 2012. Invoking its mandate to certify only fair and equitable tariffs, the Board refused to certify the levy on the basis that it was “very difficult to justify such disruptions when the tariff is short-lived, likely relatively modest and entirely retroactive”. Recording artists and the collectives that represent them share disappointment in the failure of the private copying regime to expand into the digital realm. For others, the modest levies generated from blank audio tariffs were insufficient compensation for the broader perception that they promoted in the public - that permission to copy illegally was thereby purchased. Summary by: John Lucas