Kuro5hin.org: technology and culture, from the trenches
create account | help/FAQ | contact | links | search | IRC | site news
[ Everything | Diaries | Technology | Science | Culture | Politics | Media | News | Internet | Op-Ed | Fiction | Meta | MLP ]
We need your support: buy an ad | premium membership

[P]
Notes on Canadian Copyright Law (Private Copying)

By Nagash in Media
Sat Apr 06, 2002 at 02:17:59 AM EST
Tags: Freedom (all tags)
Freedom

There has been a lot of talk about copyright of late on discussion forums and news sites. The primary reason for this is the CBDTPA. However, there has also been some hoop-la over the recent Canadian tariffs on blank recordable media. I want to shed light on something very important relating to the Canadian part of the discussion, notably, what it actually says in the Copyright Act and not what people seem to think it says (without having actually read it).


This may come as a shock to most people, but Canadian copyright law is not exactly the same as US copyright law. As trivial as this sounds, it matters. I would like to point out some very interesting parts of the Canadian Copyright Act and notes from the CIPO (Canadian Intellectual Property Organization).
  1. Section 80, under Part VII, Private Copying (http://laws.justice.gc.ca/en/C-42/36498.html#rid-36611):

    COPYING FOR PRIVATE USE

    Where no infringement of copyright

    80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

    (a) a musical work embodied in a sound recording,

    (b) a performer's performance of a musical work embodied in a sound recording, or

    (c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied

    onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording.

    Limitation

    (2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):

    (a) selling or renting out, or by way of trade exposing or offering for sale or rental;

    (b) distributing, whether or not for the purpose of trade;

    (c) communicating to the public by telecommunication; or

    (d) performing, or causing to be performed, in public.

  2. Excerpt from the "Guide to Copyrights", from the CIPO (http://strategis.gc.ca/sc_mrksv/cipo/cp/copy_gd_protect-e.html#section07)

    Not infringement:

    * borrowing a musical tape from a friend to copy onto a blank tape for private use (a royalty payment to the owner of the song rights has been paid when the blank tape was purchased)

  3. Excerpt from the Information Circular, "Private Copying", from the CIPO (http://strategis.gc.ca/sc_mrksv/cipo/cp/cp_circ_15-e.html):
    Private copying refers to the making of copies of pre-recorded musical works, performer's performances and sound recordings onto a blank recording medium, such as audio tape or cassette for personal use. An example is buying a blank tape, going home and making a second copy of your favourite tape so you can have a copy to play in the car. Another example is borrowing a tape from a friend and making your own copy instead of buying one.

I should think something is very clear here: borrowing music and copying it for private use is not copyright infringement. Also, the legal interpretation of "borrowing" and "lending" does not, to my knowledge, fall under that of distribution since distribution tends to involve the general public.

I would also like to point out that the interpretation has not been validated by case law. Hence, this interpretation could be wrong (it mentions this in the Information Circular).

In light of all this, the tariffs on blank recordable media do not seem so bad. In fact, it becomes very difficult to argue against the idea of the tariff at all. The best argument is against the rate of the tariffs, which will cause an explosion in price of some items.

Sponsors

Voxel dot net
o Managed Hosting
o VoxCAST Content Delivery
o Raw Infrastructure

Login

Related Links
o tariffs on blank recordable media
o http://law s.justice.gc.ca/en/C-42/36498.html#rid-36611
o http://str ategis.gc.ca/sc_mrksv/cipo/cp/copy_gd_protect-e.html#section07
o http://str ategis.gc.ca/sc_mrksv/cipo/cp/cp_circ_15-e.html
o Also by Nagash


Display: Sort:
Notes on Canadian Copyright Law (Private Copying) | 36 comments (29 topical, 7 editorial, 0 hidden)
Follow the money (4.60 / 5) (#3)
by dark on Fri Apr 05, 2002 at 08:01:16 PM EST

It might make sense if you look at who pays the tariff, but consider where the money goes. How much of it will end up in the hands of artists? How much will go to the copyright enforcement organization and its lawyers and lobbyists? How much will go to the publishing industry (which ostensibly holds the copyrights)?

In most countries, these figures are pretty bad. Will Canada be any different?



Re: Follow the money (none / 0) (#20)
by chbm on Sat Apr 06, 2002 at 07:59:51 AM EST

That's a problem between the recording artists and the recording artists mobs^Wassociations. As a user I'm more interested in will this tarif garantee private use or will be a racketing scam where despite paying heavily to be able to make personal copies you end going to jail cause DMCA rules supreme like in the USA.

-- if you don't agree reply don't moderate --
[ Parent ]
Bloodsuckers (none / 0) (#23)
by dark on Sat Apr 06, 2002 at 02:43:28 PM EST

I'm worried about the parasitic cycle here. This money goes to an organization that's primarily suits and lawyers. They use it to lobby for even more money. This becomes hard to sustain, especially when the percentage of tariffed media that is actually used for music drops and people get skeptical. So they need even more money to lobby harder, and to pay lawyers who bully everyone who opposes them.

This hasn't happened yet in Canada, as far as I can tell, but it's definitely happening in the USA and it's underway in Finland and the Netherlands (two countries where I have lived).

I'm not so much worried about the artists, but about the collateral damage to copyright laws.



[ Parent ]
Strange contradiction (4.66 / 3) (#4)
by dark on Fri Apr 05, 2002 at 08:14:52 PM EST

From the Proposed Tariffs PDF:

(5) The Copyright Act exempts from the levy recording media that are sold to a society, association or corporation that represents persons with perceptual disabilities. The Copyright Board cannot grant any other exemption.
... but later in the document:
(2) Under certain terms and conditions, CPCC may waive the levy on sales to certain persons or organizations. These include religious organizations, broadcasters, law enforcement agencies, courts, tribunals, court reporters, provincial ministers of education and members of the Association of Universities and Colleges of Canada, music and advertising industries.
So... which is it?



Both (none / 0) (#13)
by Sunir on Sat Apr 06, 2002 at 12:58:51 AM EST

From yet another FAQ:

The Copyright Act does grant one exemption to associations representing persons with perceptual disabilities. In this respect, to help mitigate the effect of the levy on certain groups, the CPCC has implemented a zero-rating scheme which permits manufacturers and importers to sell blank audio recording media to certain categories of users without having to pay the levy. These include religious organizations, broadcasters, law enforcement agencies, courts, tribunals, court reporters, provincial ministers of education and members of the Association of Universities and Colleges of Canada, music and advertising industries.
So, in my layman eyes, I gather they may (but not must) exempt all these organizations if representative of people with perceptual difficulties.

If you want to know more, there's a phone number on the page I referenced.

"Look! You're free! Go, and be free!" and everyone hated it for that. --r
[ Parent ]

More... (none / 0) (#15)
by Sunir on Sat Apr 06, 2002 at 01:31:16 AM EST

From yet another FAQ:
The Act exempts the payment of the levy when recording media are sold to a society, an association or a corporation that represents persons with perceptual disabilities. No other exemptions are currently provided for in the Act.
I think that answers the question.

"Look! You're free! Go, and be free!" and everyone hated it for that. --r
[ Parent ]

Other way around (none / 0) (#35)
by Kwil on Mon Apr 08, 2002 at 01:08:49 AM EST

They must exempt those organizations that are representative of people with perceptual difficulties, and may exempt others if they so wish.

That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze


[ Parent ]
Re: Strange contradiction (none / 0) (#17)
by Therac-25 on Sat Apr 06, 2002 at 03:37:07 AM EST

The Copyright Board is not the CPCC. Ergo, no contradiction.

The first paragraph is probably saying that the law exempts those groups, and that that's all the goverenment is going to say on the matter.

The second paragraph says that the CPCC (which is not part of the goverenment) may waive levies if it feels like it -- however, I don't really see how that'll happen, as the CPCC gets the money [b]after[/b] the levy has been applied. Refund, maybe?

--
"If there's one thing you can say about mankind / There's nothing kind about man."
[ Parent ]
What about non-musical uses? (4.77 / 9) (#6)
by DonQuote on Fri Apr 05, 2002 at 08:15:31 PM EST

The biggest problem with the tariffs is that there are many uses for tapes, CD-R media, and hard drives (which IIRC are coming into consideration for tariffs) than storing copyrighted music. If I use CD-RWs to back up my server, for example, why should I pay the music industry?

Worse yet, what if I were an independent artist, and composed my own songs. If I wanted to distribute my works to the public on tapes or CDs, I'd have to pay my competition!!

Tariffs may seem logical, but as someone else pointed out, very little actually gets to the artists, and it applies a tarrif for a specific use onto a multi-use product, which I don't think is fair.

-DQ
... Use tasteful words. You may have to eat them.

Re: What about non-musical uses? (none / 0) (#9)
by manobes on Fri Apr 05, 2002 at 09:08:16 PM EST

Somebody once told me that you can get a rebate for the levy on blank CD-R's if you sign something that said they were used for data instead of music. This was in a academic setting though, so it might only apply there.

No one can defend creationism against the overwhelming scientific evidence of creationism. -- Big Sexxy Joe


[ Parent ]
Is there? (none / 0) (#16)
by dave114 on Sat Apr 06, 2002 at 02:26:37 AM EST

If you find any info on this please pass it along. I'd love to learn about it. I'd guess any rebate would probably like you suggest only apply to use in an academic setting though.

[ Parent ]
Somebody was lying to you (none / 0) (#34)
by Kwil on Mon Apr 08, 2002 at 01:05:54 AM EST

There's no provision in the Act for anything like that. The only exemptions and refunds go to societies that represent the perceptually disabled. Anything additional is wholly the choice of the CPCC (they currently choose to allow religious institutions to also receive a refund).

In fact, according to the act, there is absolutely no provision for refunds to anybody but the societies for the perceptually disabled. So the CPCC's "refunds" to religious institutions they probably write off their taxes as donations.

That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze


[ Parent ]
If you read... (none / 0) (#18)
by Therac-25 on Sat Apr 06, 2002 at 03:43:41 AM EST


... the CPCC's <a href="http://www.cb-cda.gc.ca/tariffs/proposed/cp19032002-e.pdf">rationale</a> for the recent proposed tariff increases, you'll find out that they take this into account when deciding on how much to charge.

Thier calculations are flawed logically, and they have not (to my knowledge) actually presented any proof of thier assertions of sutdying usage patterns, but they have explained themselves.

--
"If there's one thing you can say about mankind / There's nothing kind about man."
[ Parent ]
Bad HTML! Bad! (none / 0) (#19)
by Therac-25 on Sat Apr 06, 2002 at 03:44:57 AM EST

I, of course, meant for that to come out looking like
... the CPCC's rationale...

--
"If there's one thing you can say about mankind / There's nothing kind about man."
[ Parent ]
It's lynching time! (none / 0) (#27)
by Andy P on Sat Apr 06, 2002 at 06:57:54 PM EST

I didn't know about the levies, and I'm pissed now that I do.

ii. CD-R and CD-RW

The current levy on these media is 21, which CPCC proposes to increase to 59 on CD-R and CD-RW and any.....

Correct me if I'm wrong, but that would mean I'm paying $21/100 CD-Rs I buy right? And they want to up it to $60/100? My data backup seems to be alot less economical than I thought it was, and I don't even listen to music. My dad, who has never pirated a CD in his life is going to be mad, he burns several backup CDs a night.

[ Parent ]

To make things worse... (none / 0) (#28)
by Trepalium on Sun Apr 07, 2002 at 12:20:31 AM EST

Non-profit organizations for those with perceptual disabilities (I assume they would mean deaf) can get the levy refunded. No one else can. Doesn't matter if these CD-Rs are used for business data purposes only. And lastly, if you want to cross to the states, and buy some CD-Rs, you can import them back into Canada without a levy. At this rate, just buying 100 CD-Rs will easily pay for the gasoline for the trip down to the states to buy CD-Rs.

[ Parent ]
Flawed logic - what an understatement! (5.00 / 1) (#32)
by DonQuote on Sun Apr 07, 2002 at 01:45:14 PM EST

The whole levy logic has major problems. You can certainly "spread out" the cost based on some percentage of use that's actually "music copying" (although finding an accurate percentage is an ardous if not impossible task in itself), but it doesn't change the fact that the levy is generating profit for the copyright industry at the costs of people who aren't using their "product" (music).

Smells fishy to me. I mean, we pay taxes that go to fund services we may not use (e.g. welfare) but those are social services, in place for the good of the community. I hardly consider subsidising a business worthy of a tax(especially one that relies on a rapidly obsolescing business model and produces such wonders as Britney Spears - but I digress).

-DQ
... Use tasteful words. You may have to eat them.
[ Parent ]

Curiouser and curiouser (5.00 / 1) (#36)
by Kwil on Mon Apr 08, 2002 at 01:18:56 AM EST

In the CPCC's FAQ, they acknowledge that businesses use the media for backup and do not copy music files so they've lowered the rate to account for that.

In other words, "We know you don't use this, so we'll charge you a bit less." Excuse me? Man, imagine if McDonald's could get this type of deal "We know you don't eat here, so just send us a small amount of money."

Never mind that the software industry has been dealing with copying for years and doesn't see a dime of this money.

But if that wasn't bad enough, near the end of the FAQ the CPCC mentions how they also don't charge anything extra for people making their own mixes, even though such mixes are of greater value to the customer, being individualized. Hey thanks! So they're not gonna charge me for doing my own work - how generous. What other industry would have the cajones to even suggest such a thing?

That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze


[ Parent ]
Who care about a bunch of disposable americans? (1.77 / 9) (#11)
by BunnyVomit on Sat Apr 06, 2002 at 12:12:14 AM EST

Laugh Damn it.
--
Join the Bunny Cabal or it means you enjoy watching 7th heaven.
Distribution (4.33 / 3) (#14)
by Sunir on Sat Apr 06, 2002 at 01:26:40 AM EST

In the reasons for the decision, the Copyright Board makes an important distinction right at the beginning:

The private copyright regime legalizes copyright for the private use of the person making the copy. It does not legalize copying for use (private or otherwise) by a third party: a CD that a person burns for the use of another is not a private copy. On the other hand, it is not required that the source or target medium be lawfully owned; using a stolen prerecorded CD to make a private copy on a stolen CD-R involves two instances of theft but no copyright infringement.
Thus, you can borrow then burn, but not burn then give. It also seems that they are suggesting that you could cough steal CDs you want to copy, and then maybe return them when you're done before cough charges are cough pressed, but I ain't no lawyer, and that sounds like crazy talk to me.

This also means that file sharing (MP3zing) is still illegal. Speaking of the Internet, if you read the whole document, you might find some pleasant forethinking about where the music industry is heading and then what they might do about it. If you read even closer, you might notice a few sarcastic swipes here and there too just to keep you awake.

"Look! You're free! Go, and be free!" and everyone hated it for that. --r

The Copyright Act says this (none / 0) (#21)
by Nagash on Sat Apr 06, 2002 at 01:38:49 PM EST

Thus, you can borrow then burn, but not burn then give.

This is why the wording from the Act is important:

Subject to subsection (2), the act of reproducing all or any substantial part of (a) (b) (c) onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording. (Emphasis mine)

If I make a copy and give it (not lend it, etc.) to someone, I did not make that copy for my private use. Thus, I am not abiding by Section 80(1) of the Act and hence, infringing copyright on the work copied.

The one question that might crop up is that making a copy of a copy may violate the limitation (Section 80(2)). I doubt this, since if I make a copy for my private use I did not do it for the purpose of anything in Section 80(2).

Woz



[ Parent ]
Steal? (none / 0) (#24)
by scruffyMark on Sat Apr 06, 2002 at 02:45:05 PM EST

you suggest you could cough steal CDs you want to copy, and then maybe return them when you're done before cough charges are cough pressed.

Sounds like borrowing them from a library to me.

[ Parent ]

Does it? (none / 0) (#25)
by crank42 on Sat Apr 06, 2002 at 05:37:42 PM EST

This also means that file sharing (MP3zing) is still illegal.

I'm not at all sure of that, and here's why.

The interpretation offered by the government is that you can lend your copy to someone else, who can then copy it. If that's the case, then putting your collection of MP3s (which you copied legally) up on the net is not illegal, because you are merely giving access to your collection to someone else. (You did rip them for your own use, and not just to distribute them, right?)

Now, the problem is that there is no distinction, in practical terms, between downloading an MP3 or ogg file in order to listen to it, and downloading it in order to copy it. But it seems to me that, in the absence of evidence of bad faith, a court would have to rule that the whole thing was perfectly legal.

I am not, of course, a lawyer. I have asked dozens of people about this, including several lawyers and (mostly) to-be-lawyers, and no-one has yet been willing to commit to an opinion on the matter. (The most notable exception was a Slashdot editor, who, during the Napster controversy, told me he was sure I was wrong, because "the government would never have allowed that". As though carelessly-crafted legislation is totally unheard of. My, ostriches make great pets.) I suspect that the argument is sound, but makes the law absurd; therefore, no-one wants to press it, because the law would undoubtedly be overturned if the result is as I suggest. But since I'm asking again, is there a real Canadian legal mind in the house?

[ Parent ]

I wonder (5.00 / 2) (#22)
by voltron 3000 on Sat Apr 06, 2002 at 01:41:57 PM EST

if this could lead to the US boycotting Canada, like they threatened to do with Ukrania.

pffff, you wish. (1.00 / 1) (#31)
by Hillman on Sun Apr 07, 2002 at 01:43:08 PM EST

About 80% of the trailer trash population depend on Celine Dion, our main export.

[ Parent ]
It IS unfair (5.00 / 2) (#26)
by Yottabyte on Sat Apr 06, 2002 at 06:03:05 PM EST

This is still unfair to those that just want to burn the latest *nix distro, some personal files, and any other freely availble media.
.sig
Canadian copyright.... (none / 0) (#29)
by stpna5 on Sun Apr 07, 2002 at 12:24:04 AM EST

There is similar legal precedent in American copyright law. The big legal battle years ago between the movie studio and video recording industries was settled(eventually)by a court in this way. There was a buzzword the movie lobbyist honcho Jack Valenti started using--"timeshifting"----like 'ok you can do it once to tape it while you're not home...' The control of access to technology has been the previous technique; when blank tape taxes and such have been attempted. There were people in Europe and Asia using DAT machines years before they even crept into the inventories of the largest American consumer electronics retailers. Control of copyrights has become a new tactical business weapon. None of these corporations has authored a poem, song novel, painting etc. They prefer to twist and corrupt all existing legislation of any sort to service their strategies. Even today movies made by and starring Americans are often only available in original form outside of the United States. So much for zone coding. Dumb markets are big markets.

How does copy prevention technology fit in? (5.00 / 2) (#30)
by Peanut Joe on Sun Apr 07, 2002 at 10:14:31 AM EST

I got a question about this whole copyright thing in Canada. So we pay a tariff on blank media which inturns alows us to make copies for private use right (So far I'm OK with it). Well what happens when the record companies make thier media with copyprotection built in? We still pay the tariff to make copies but are physically unable to make copies.....I see a problem here.

Indeed (none / 0) (#33)
by Nagash on Sun Apr 07, 2002 at 08:42:36 PM EST

That's part of the reason this is so interesting. If Canada imports CDs with copy protection, then it impeeds upon the legal rights of citizens to make copies of music for personal use. So unless music CDs move toward a licensing scheme like most consumer level software, there will more than likely be huge consumer and legal backlash. If CDs do move toward a licensing scheme, then there will also be, with high probability, huge consumer backlash.

Basically, it just makes the idea of copy protection look worse and worse. You may want to bring this up with your provincial or national member of parliment.

Woz


[ Parent ]
Notes on Canadian Copyright Law (Private Copying) | 36 comments (29 topical, 7 editorial, 0 hidden)
Display: Sort:

kuro5hin.org

[XML]
All trademarks and copyrights on this page are owned by their respective companies. The Rest 2000 - Present Kuro5hin.org Inc.
See our legalese page for copyright policies. Please also read our Privacy Policy.
Kuro5hin.org is powered by Free Software, including Apache, Perl, and Linux, The Scoop Engine that runs this site is freely available, under the terms of the GPL.
Need some help? Email help@kuro5hin.org.
My heart's the long stairs.

Powered by Scoop create account | help/FAQ | mission | links | search | IRC | YOU choose the stories!