Dale Dietrich
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Category — Media Levy

EU to Roll Back Hardware Levies

Categories: CopyrightMedia Levy

The European Commission is starting to move forward with a directive to EU countries to roll back levies on hardware devices. The levies were introduced in the 1960s to compensate artists for the fact that consumers used photo copiers and cassette recorders to make private copies of books, and records. They have been extended to all manner of devices that handle content in electronic form.

Sources: Link | Market Watch | Top VOIP News

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CRIA Wants No Further Part in Canadian Blank Media Copy Levy

Categories: CopyrightDMCA-like LawsMedia Levy

In 1999, the Canadian Copyright Act was amended by adding Part VIII, permitting private copying of music for the “private use of the person who makes the copy”. In exchange the Canadian Private Copying Collective (CPCC) was established to collect levies on all recordable media (eg: currently 29 cents per audio cassette, 21 cents per CD-R and CD-RW and 77 cents per CD-R Audio, CD-RW Audio and Minidisk) and to distribute the levies to songwriters, recording artists, music publishers and record companies. The CRIA had spent 15 years lobbying for the levy. Apparently in response to the Canadian Federal Court’s preliminary decision in BMG Canada v. John Doe (since overturned in part), that “the downloading of a song for personal use does not amount to infringement”, the Canadian Recording Industry Association (CRIA) recently changed its tune [pun intended] saying to Billboard “We don’t want a private copying levy that, in effect, sanctions online theft”. Instead the CRIA is now advocating for Canada’s ratification of the controversial WIPO Internet Treaty which lead to the extremely controversial, consumer-unfriendly DMCA-DRM system in the U.S. The compromise reached in the 1999 amendment was, in exchange for the levy, reproductions of musical works for private use would not constitute infringement of copyright. Now as Canadian courts determine that this right may be inclusive of the right to copy music from P2P services, CRIA wants nothing to do with it.

Sources: Billboard | ars technica | Michael Geist | CPCC | .doc version of Billboard Article (from CCFDA) | CRIA | Copyright Act (Canada)

Related CRIA’s Own Study Counters P2P Claims

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Canada’s Private Copying Levy Distortion

Categories: CopyrightLobbyingMedia LevyPolicy Analysis

The Copyright Board of Canada last week released its proposed tariff for 2007 for the private copying levy. The numbers remain unchanged. Geist argues for either ensuring the levy covers all private copying or the levy should be dropped.

Source: Michael Geist

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Canadian Recordable Media Levy to Stay

Categories: CopyrightLegal ReformMedia Levy

The tariff Canadians pay on recordable compact discs and other recordable media to compensate recording companies for loss of music sales will remain in place, unchanged, beyond the deadline of Dec. 31.

Globe and Mail

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Canadian Federal Court of Appeal Reaches a Stalemate as to Whether and How Discovery of P2P Users’ Identity Can be Compelled

Categories: BigMedia v. P2P UsersDecisionsMedia LevyPrivacy

Text of Decision In BMG Canada v. John Doe 2005 FCA 193; [2005] F.C.J. No. 858 (CA) (QL), the Canadian Federal Court of Appeal considered a prior federal court ruling denying the Canadian Recording Industry Association's ("CRIA") request to compel ISPs to disclose of the identity of peer to peer (P2P) file sharing users.

The Court of Appeal disagreed with the lower court's ruling on the following basis:

  • Proper Test: It determined that the proper test to be applied in determining whether such disclosure can be compelled is whether a bona-fide claim against the proposed defendants is made out and not, as the lower court determined, whether a prima facie case (a higher standard) has been made out.
  • Findings on Infringement: The Court of Appeal determined that the lower court should not, at that stage of the preceding, have made conclusions as to what would or would not constitute infringement and made it clear that if the case proceeded further "it should not be done on the basis that the findings to date on the issue of infringement have been made". The court suggested several basis upon which the lower court's infringement (or lack there of) conclusions could be challenged. Accordingly, the Court of Appeal held that the lower court's finding that "the downloading of a song for personal use does not amount to infringement" must be ignored in any future consideration of the case.

However, the Court of Appeal did agree with the lower court with respect to the importance of balancing the privacy interests of ISP customers with the need protect intellectual property rights. In future such cases CRIA must:

  • show that it has a bona fide claim” against the proposed defendant;
  • the claim must be based on admissible, non-hearsay, evidence;
  • there should be clear evidence to the effect that the information cannot be obtained from another source such as the operators of the P2P services in question;
  • "…[T]he public interest in favour of disclosure must outweigh the legitimate privacy concerns of the person sought to be identified if a disclosure order is made”.
  • The information on which a request for identification iis made (e.g., IP address) must be timely; and
  • The plaintiffs must not collect more personal information than necessary for the purpose of their claim.

Dale's Comment: It is not clear at this point whether, as the lower court judge concluded, downloading music off the Internet through P2P services constitutes copyright infringement or is permissible under the private copying exemption contained in section 80(1) of the Copyright Act. What is clear is that the evidentiary standard by which such disclosure can be compelled is much higher than CRIA had originally anticipated and certainly higher than what the U.S. courts are requiring of the RIAA. CRIA will be required to bring substantial, relaiable, admissible, non-hearsay evidence showing a bona-fide claim in order to have a court compel such disclosure. The judge has, to my mind, laid out a convenient road-map that CRIA can follow to compel such disclosure in future cases. In light of the private copying exemption contained in section 80(1) of the Copyright Act, whether or not CRIA will have success on the merits in any subsequent infringement case is still unclear. In any event, there is a significant probability that current copyright reform efforts in Canada will result in amendments to the Copyright Act clarifying the situation before any such future case makes it to the courts. In particular, in reseponse to this case, Heritage Canada has stated that the Government of Canada intends to enact changes to the Copyright Act to confer exclusive "making available" rights to copyright holders intended to explicitly make such unauthorized P2P sharing of music online illegal.

Earlier Trial Level Post:

Related Stories: Internet and E-Commerce Law in Canada | e-Copyright Bulletin | Heritage Canada | CRIA Press Release

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Canadian Federal Court Rejects Motion to Disclose IP Addresses of P2P Users

Categories: BigMedia v P2P ProvidersDecisionsMedia LevyPrivacy

Text of Decision (Reversed, in part, on appeal)

Update (May 19 2005): Note that the findings of the court described below as to: (i) the lack of infringement; and (ii) the tests that must be met to compel disclosure; were subsequently overturned by the Court of Appeal. Click here for my post on the appeal court's ruling.


In BMG Canada Inc. v. John Doe, 2004 FC 488 (aff'd/rev'd 2005 FCA 193), much like the RIAA is doing in the U.S., the Canadian Recording Industry Association ("CRIA") brought a Federal Court of Canada motion to compel Canadian ISPs to disclose the identities of 29 individuals they allege were violating copyrights through the use of KaZaA and iMesh P2P file-sharing networks. CRIA submitted that the individuals used the IP addresses registered with the defendant ISPs and, as such, sought disclousre of their identities from the ISPs. Judge von Finckenstein ruled that CRIA did not meet the necessary tests for granting such an equitable bill of discovery. Specifically, CRIA did not meet the required tests in the following ways:

A. CRIA did not establish a prima facie case against the unknown wrongdoers:

Affidavit Deficiencies:

  1. The affidavits in support of the motion, being provided/sworn by the President of MediaSentry Inc. (Gary Millin) consisted largely of hearsay. His employees identified the IP addresses of the John Does, not Mr. Millin
  2. The Media Decoy system used by MediaSentry, distributes millions of bogus or inoperative files over the Internet to look like music files. Mr. Millen did not actually listen to the files copied by the John Does to determine if they were infringing files, decoy files or other files.

No evidence exists to connect the pseudonyms and the IP addresses:

No evidence was supplied as to how MediaSentry linked the pseudonyms used by KaZaa and iMesh users to the IP addresses identified by MediaSentry.

No evidence of infringement in copyright:

  1. Section 80(1) (Copying for Private Use) of the Copyright Act provides:"the act of reproducing all or any substantial part of a musical work … onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement in the musical work" and, as such, "the downloading of a song for personal use does not amount to infringement".
  2. Merely placing personal copies of songs into shared directories which are accessible by others via a P2P services does not constitute either: (i) the distribution or unauthorized copies or (ii) authorization of the reproduction; of sound recordings which is prohibited under the Copyright Act.
  3. The judge analogized to the L.S.U.C. v. CCH case where the establishment of facilities that allowed photocopying in a room full of copyrighted material did not amount to authorizing infringement. The judge could not see a real difference between that and a computer user that places a personal copy on a shared directly linked to a P2P service.
  4. The judge also noted that Article 6 of the 1996 WIPO Treaty, whereby authors would have the "exclusive right of authorizing the making available to the public the original and copies of their works", does not form a part of Canadian copyright law as the treaty has not yet been implemented in Canada.

B. CRIA did not show that the ISPs were the only practical source for the identity of the P2P users:

The person from whom discovery is sought must be the only practical source of the information available to the applicants. CRIA did not establish who the operators of the KaZaa or iMesh services were or whether the information could be determined from such persons.

C. In light of CRIA's delays, the public interest for disclosure was not outweighed by privacy concerns:

  1. While the plaintiffs are entitled to protect their rights, in light of legitimate privacy rights of Canadians, the judge must be satisfied that the information is reliable and disclosure is the minimum required for the plaintiffs to identify the alleged defendant. The ISPs indicated they could only reliably produce the requested information if requested in a timely fashion (ie: within 30 days or less of the alleged incident).
  2. However, the notice of motion requesting disclosure was given months after the evidence was gathered.
  3. Given the age of the data, its unreliability and the serious possibility of an innocent account holder being identified, the court was of the view that the privacy concerns outweigh the public interest concerns in favor of disclosure.

Subsequent Federal Court of Appeal Post:

Related Stories: WikiPedia | P2PNet | Gen X at 40 | CNet | Lang Michener

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