--- Date: Fri, 12 Dec 2003 09:32:48 -0500 To: Declan McCullagh <declan@private> From: Michael Geist <mgeist@private> Subject: private copying Declan, The decision is out in 30 minutes, but I've spoken with someone inside the Board and have the key findings -- I've reported it in ILN as follows -- CAN COPYRIGHT BOARD RELEASES PRIVATE COPYING DECISION The Canadian Copyright Board released its much anticipated private copying decision this morning. The Board froze tariffs on existing media such as blank CDs at their prior rates. It also added a new tariff on embedded memory on MP3 devices starting at C$2 for up to 1 gigabyte of hard drive space to a maximum of C$25 for hard drives of 10 gigabytes or more. In a split decision, the board also voiced the view that the zero rating scheme used by the Canadian Private Copying Collective was unlawful and would not be used in future private copying tariff determinations. Decision to be available at http://www.cb-cda.gc.ca/new-e.html The decision is roughly 100 pages -- more once its been released and I've read it. MG -- ********************************************************************** Professor Michael A. Geist Canada Research Chair in Internet and E-commerce Law University of Ottawa Law School, Common Law Section Technology Counsel, Osler, Hoskin & Harcourt LLP 57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5 Tel: 613-562-5800, x3319 Fax: 613-562-5124 mgeist@private http://www.michaelgeist.ca --- Date: Fri, 12 Dec 2003 11:57:26 -0500 To: Declan McCullagh <declan@private> From: Michael Geist <mgeist@private> Subject: private copying -some comments Declan, Having worked quickly through the decision, it is safe to say that we're talking about a very significant decision and that the Copyright Board was well aware of its significance (they openly acknowledge that). Ultimately, four key take-homes in my view. First, the P2P elements of the decision and the view of the board that private copying can cover online music downloading in certain circumstances. Second, personal computer hard drives are very much on the table for future tariffs. Third, ruling that zero rating is outside the board's jurisdiction will infuriate a whole host of groups including universities, broadcasters, etc. and create an even greater challenge next time round. Fourth, the Copyright board essentially acknowledges that tariffs that are too high will distort the marketplace and create grey market. They opt not to do that, but in the process are likely distorting the copyright market itself by not providing full compensation for copying. Key findings: 1. The decision addresses head on the issue P2P copying. It is clearly the Board's view that the private copying exemption does not apply to uploading or making available music. At the same time, it is clearly of the view that it does apply to downloading of music provided that it is for personal use and that it is copied to media covered *or potentially covered* by the regime. This importantly means that copying to a personal computer hard drive is covered. Note also that the board does not believe that it matters where the original comes from -- they are concerned only with end copying. 2. The board is well aware of the prospect for the levy to cover computer hard drives. It notes that the CPCC hasn't asked for that this time, but could in the future. Given the huge policy issues associated with such a move, it recommends that Canadian policy makers examine the issue. 3. The board talks again about the value of a private copy. It remains of the view that private copies (explicitly including MP3s) are not of the same value as the original CD. This has an impact on the size of the levy. 4. The board also talks about TPMs. It notes the policy debate but says that it is outside the scope of the current decision. It does not, however, that widespread TPM use could have the effect of reducing the levy. 5. On the size and scope of the levy itself -- - CD-R and CD-RW stay the same -- attributed to no clear evidence - no DVD-R -- music copying not the predominant use - MP3 players -- create tariff but well below request of CPCC The board acknowledges the effect of the levy on the market and discusses grey market issues which it believes may exist. 6. Removal of the zero-rating system -- the Board wants this dealt with by Parliament, not a private collective. A more couple of comments -- 1. CPCC and the copyright holders will likely be unhappy with this decision. They've made only marginal gains (MP3 players) and had other media such as DVD-R and removable media exempted. 2. The zero rating decision will also leave the CPCC unhappy -- it means that many other currently exempted groups such as universities, broadcasters, etc. -- will no longer be covered for future tariff settings (post 2004). This will likely be challenged. Call if you have questions or comments. MG -- ********************************************************************** Professor Michael A. Geist Canada Research Chair in Internet and E-commerce Law University of Ottawa Law School, Common Law Section Technology Counsel, Osler, Hoskin & Harcourt LLP 57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5 Tel: 613-562-5800, x3319 Fax: 613-562-5124 mgeist@private http://www.michaelgeist.ca _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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