Re: [Cdn-DMCA] "Private copying Tariff"
From: "Tom Trottier" <Tom _-at-_ Abacurial.com>
To: No DMCA in Canada <canada-dmca-opponents (at) flora.org>
Date: Tue, 12 Mar 2002 14:30:21 -0500
Some comments:
".blank audio recording medium. means
(a) a recording medium, regardless of its material form, onto
which a sound recording may be reproduced, that is of a kind
ordinarily used by individual consumers for that purpose and
on which no sounds have ever been fixed, including [examples]"
So the medium has to be completely blank. Anything with a short recording,
e.g. "Record here" or demo music, Windows sounds, or a couple of beeps or
chimes would be tariff-free.
OTOH, it also says:
"(b) any medium prescribed by regulations pursuant to sec-
tions 79 and 87 of the Act "
So they could slam the door shut.
It does seem pretty dumb to specify exact amounts rather than a percentage
of value. In the normal course of laws, inflation reduces the effect of
specific amount taxes, but digital progresses at about 50%/year. The $21/GB
tax on MP3 player hard drives is already 7x the cost of the hard disk
storage, but the storage cost will likely decrease each year by about 33%,
so in 10 years, the tax would be about 400x the cost of the storage.
Also, if end users import them directly from another country, no tax is
payable. For a 40MB jukebox, they would save $840, all else being equal. So
much for local sellers.
You thought cigarettes in Canada were taxed! This is a real recipe for
encouraging smugglers.
The complete English text of the "Private Copying Tariff" follows
Tom
On Tuesday, March 12, 2002 at 11:39, Jeff Dever <canada-dmca-
opponents@flora.org>
wrote re "[Cdn-DMCA] "Private copying Tariff"" saying:
> Please read the "Private Copying Tariff" located at:
> http://www.cb-cda.gc.ca/tariffs/proposed/c09032002-b.pdf
>
> I have to valid objectsions to this proposed tariff. First of all, the
> definition of "blank audio recording medium" on page 7 in the definitions
> section is all emcompasing. There is not sufficiently clear distinction
> between audio media and data media where audio is a possible data format.
> The wording includes any medium that *could* be used to store audio
> including:
> audio cassette,
> blank CDs,
> minidiscs,
> blank DVDs and
> removable memory cards and micro hard drives.
> non-removable memory and non-removable hard drives
>
> The last two are the truely scary entries. Devices that fall under
> these categories include PDAs, cell phones and any embedded device that
> contains memory or storage that can be used for audio. This will impact
> emerging markets (portable electronic devices) to the benefit to an
> extablished market (music industry) and will detrement consumers.
>
> The second major disagreement is with the sheer size of the levies. In
> section 3 page 7. $2.27 for each DVD, in particular considering the DVDs
> are most commonly used for data and video. Rarely would a person use DVD
> for pure audio in any format (raw, mp3, ogg ...). $0.08 for each megabyte
> ($8 per gigabyte) for removable flash memory or removeable micro-hard drive
> with out any disdinction on how it is sold. ALL REMOVALBE MICRO MEDIA IS
> COVERED UNDER THIS, including flash cards for cameras, PS2 memory cards,
> EVERYTHING. $21 per gigabyte for each non-removable media for devices which
> are intended to primarily play and record music, without a clear definition
> of what that means (do PDAs with mp3 software, an audio out jack and volume
> nob qualify?)
>
> IANAL, but my feeling is that the best attact on this proposal is to
> A) limit its scope and B) reduce the amounts. The preamble clearly
> outlines what the board cannot do. It appears that they are obligated
> to impose the levy but the two points above are in their power to
> modify.
>
> There is a call for comments and objections open untill May 8th and
> there is a hearing on May 23 at the offices of the copywrong board.
>
>
Supplement
Canada Gazette, Part I
March 9, 2002
Supplément
Gazette du Canada, Partie I
Le 9 mars 2002
COPYRIGHT BOARD COMMISSION DU DROIT
D.AUTEUR
Statement of Proposed Levies to be
Collected by CPCC for the Sale, in Canada,
of Blank Audio Recording Media
for the Years 2003 and 2004
COPYRIGHT BOARD COMMISSION DU DROIT D.AUTEUR
FILE: Private Copying 2003-2004 DOSSIER : Copie privée 2003-2004
Statement of Proposed Levies to Be Collected for the Sale, in
Canada, of Blank Audio Recording Media
Projet de tarif des redevances à percevoir pour la vente, au
Canada, de supports audio vierges
Pursuant to subsection 83(6) of the Copyright Act, the Copy-
right Board hereby publishes the statement filed by the Canadian
Private Copying Collective (CPCC) on February 11, 2002, with
respect to the levies it proposes to collect, effective January
1,
2003, for the sale, in Canada, of blank audio recording media.
In accordance with the provisions of the same subsection, the
Board hereby gives notice that any person who wishes to object to
the statement may file written objections with the Board, at the
address indicated below, within 60 days of the publication of this
notice, that is, no later than May 8, 2002.
Objections that do not conform to the directions set out in this
notice will be dealt with as letters of comments; the person filing
them will not be considered as a formal objector.
Objections must briefly state the reasons therefor, and must in-
dicate the name, address, telephone number, facsimile number
and electronic mail address of the objector. The objection must
also contain the following declarations:
I intend to participate actively to the process leading to the cer-
tification of the private copying tariff. Consequently, this con-
stitutes my formal objection to the proposed statement filed by
CPCC.
I have read the information set out in the Board.s notice pub-
lished in the Canada Gazette on March 9, 2002 with CPCC.s
proposed statement. I understand the duties that I undertake as
an objector and intend to abide by them.
Objections must also state if the objector intends to participate
in the pre-hearing conference to be held on Thursday, May 23,
2002 at 10:00 a.m., the object of which is set out below.
Where possible, the Board asks that all comments and objec-
tions be sent by electronic mail.
Ottawa, March 9, 2002 Ottawa, le 9 mars 2002
CLAUDE MAJEAU
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
(613) 952-8621 (Telephone)
(613) 952-8630 (Facsimile)
majeau.claude@cb-cda.gc.ca (Electronic mail)
NOTICE AVIS
Notice to the attention of those who contemplate filing
formal objections or letters of comments on
the proposed statement filed by CPCC
Pursuant to the Copyright Act, anyone can object to a proposed
statement filed in a private copying matter. There are however at
least two ways in which you may let the Board and CPCC know
how you feel about the proposed tariff.
4 Supplement to the Canada Gazette March 9, 2002
(1) You can file written comments at any time between now
and the date the Board will set for hearing final arguments. This is
the most convenient way to proceed if all you wish to do is to
state your point of view. If you file a letter of comment, it will be
part of the record of the proceedings. CPCC will receive a copy of
it and the Board will take it into account when making a final
decision.
(2) You can also file a formal objection. This form of participa-
tion requires that you abide by certain rules. You will enjoy a
certain number of rights, and will undertake a certain number of
duties. You will be required to file a written statement of case
opposing the proposed tariff and to provide any evidence in sup-
port thereof. You will be entitled to receive a copy of every
document filed with the Board in these proceedings and will be
expected to provide copies of the documents that you file with the
Board to all other participants. You will be allowed to ask ques-
tions and obtain information from other participants and be ex-
pected to answer questions and provide information to them. You
will be allowed, but not required, to appear before the Board
at a public hearing to present evidence and ask questions from
witnesses.
Here are a few comments on some of the more important stages
of the process. You can find out more by consulting the model
directive on procedure typically used by the Board, which is at:
www.cb-cda.gc.ca/new-e.html (see .Model Directive. under the
heading Private Copying 2003-2004). The Board will issue the
actual directive for these proceedings in due course.
Pre-Hearing Conferences Les conférences préparatoires
Pre-hearing conferences are held to help the Board and partici-
pants focus on the real issues to be addressed. They also allow to
set timetables and settle a variety of preliminary issues.
A first pre-hearing conference will be held on Thursday,
May 23, 2002 at 10:00 a.m. at the offices of the Board. The issues
to be addressed at that conference include a timetable for the pro-
ceedings, possible consolidation of objections and any other mat-
ter of relevance that may be suggested by participants or identi-
fied by the Board.
Other pre-hearing conferences will be held if necessary. D.autres
conférences seront tenues si nécessaire.
Those who file a formal objection must let the Board know at
the same time if they intend to participate in the pre-hearing con-
ference of May 23, 2002. Those who do not attend will neverthe-
less be required to comply with the timetable and other directions
that will be set at that conference.
Preliminary Statement of Positions Énoncé préliminaire de positions
In this matter, the Board wishes to learn as soon as possible the
preliminary arguments of participants. For this reason, the Board
has asked that CPCC file a preliminary statement of its position
which will be available on Tuesday, March 19, 2002 on the
Board.s Web site at: www.cb-cda.gc.ca/new-e.html (see
.CPCC.s Position. under the heading Private Copying 2003-
2004). Reading this statement before you file any objections or
comments will help ensure that they are relevant.
Any formal objection must briefly state the reasons therefor.
You will be asked to file a more detailed preliminary statement of
position at a later date, which will be set at the pre-hearing con-
ference of May 23, 2002.
The interrogatory process in a Copyright Board proceeding is
akin to the discovery or deposition process in a normal lawsuit.
As an objector, you will be allowed to obtain relevant information
or documentation in the possession of other parties which you
believe will assist your case before the Board. You will then be
allowed to make that information part of the record for purposes
of the proceedings, thereby allowing you to rely on it in support
of your arguments.
No one is required to address interrogatories to the other par-
ticipants. However, an objector who receives a request must pro-
vide an answer to the party who made the request by the date set
by the Board for that purpose.
Statement of Case Énoncé de cause
A participant.s statement of case sets out the arguments he/she
intends to rely upon as well as the evidence he/she intends to pro-
vide at the hearing. It should include witness statements (summa-
ries of what the party.s witnesses will say at the hearing), expert
reports and any other documentary evidence upon which the party
intends to rely. In this proceeding, CPCC will be asked to file its
statement of case first. Other parties will then file their statements
of case in response to CPCC.s. Finally, CPCC will be allowed to
reply to the objectors. statements of case.
The Hearing L.audience
The hearing will take place in Ottawa after the filing of
CPCC.s reply case. The duration will depend on the number of
parties in attendance, the number of witnesses to be heard, and the
complexity of the evidence.
Once the evidence is presented at the hearing and the record of
the proceeding is closed, parties are given an opportunity to pre-
pare and deliver arguments in support of their respective posi-
tions, using evidence filed at the hearing or based on any legal or
public policy argument.
The Need to Comply With the Timetable Set by the Board L.importance de
respecter les échéances fixées par la
Commission
Anyone contemplating filing a formal objection must realize
how important it is to comply with the timetable and other re-
quirements set by the Board. Those who do not comply with these
requirements will lose their status as objectors.
Limitations on the Powers of the Board Les limites des pouvoirs de la
Commission
Anyone contemplating objecting to CPCC.s proposed state-
ment must realize that the Copyright Act sets out a number of
limits on what the Board may or may not do. No purpose is
served by objecting to the proposed statement based on grounds
about which the Board can do nothing. In the following para-
graphs, we summarize some of the limits imposed on the Board.s
powers in this matter:
(1) The Board must certify a tariff and set a levy. Those who
own the rights to sound recordings of musical works (compos-
ers, authors, performers and producers) are entitled to be remu-
nerated for private copies. No purpose is served by asking the
Board to reject the tariff as a whole.
(2) Only persons who own rights in sound recordings of musi-
cal works are entitled to share in the remuneration; owners of
rights in other works (computer programs, movies, literary
works) are not.
(3) The remuneration must be paid by manufacturers and im-
porters of blank audio recording media, in the form of a levy to
be imposed on those media. The obligation to pay arises when
the media are sold or otherwise disposed of in Canada by the
manufacturer or
. The Board cannot set the levy at the
retail level.
(4) The levy is payable on all media that qualify, without re-
gard to end use. No purpose is served by asking that the tariff
include a mechanism that would allow those who can prove
that they use qualifying media for purposes other than repro-
ducing musical works to be exempted from payment or to re-
ceive a refund.
(5) The Copyright Act exempts from the levy recording media
that are sold to a society, association or corporation that repre-
sents persons with perceptual disabilities. The Copyright Board
cannot grant any other exemption.
TARIFF OF LEVIES TO BE COLLECTED BY CPCC IN 2003
AND 2004 FOR THE SALE OF BLANK AUDIO RECORDING
MEDIA, IN CANADA, IN RESPECT OF THE
REPRODUCTION FOR PRIVATE USE OF MUSICAL
WORKS EMBODIED IN SOUND RECORDINGS, OF
PERFORMER.S PERFORMANCES OF SUCH WORKS AND
OF SOUND RECORDINGS IN WHICH SUCH WORKS AND
PERFORMANCES ARE EMBODIED
Notes (these notes are not part of the tariff) Notes (ces notes ne font
pas partie du tarif)
(1) Pursuant to Part VIII of the Copyright Act, every person
who, for the purpose of trade, manufactures a blank audio re-
cording medium in Canada or imports such a medium into Can-
ada is liable to pay a levy on selling or otherwise disposing of that
medium in Canada, unless the medium is destined for export or
unless it is sold to a society, association or corporation that repre-
sents persons with a perceptual disability. This tariff sets the levy
as well as the related terms and conditions. It also determines the
collecting body to whom the levy is paid and how that body will
share the levy among collective societies representing eligible
rights owners.
(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. This waiver applies
only to audiocassettes, CD-R Audio, CD-RW Audio and Mini-
Discs. Those interested in finding out more about the terms and
conditions of the zero-rating scheme may contact CPCC at the
address indicated in subsection 13(1) of this statement or may
consult CPCC.s Web site at: www.cpcc.ca.
Short title Titre abrégé
1. This tariff may be cited as the Private Copying Tariff, 2003-
2004.
Definitions Définitions
2. In this tariff,
.accounting period. means the first two months of a calendar
year, and each subsequent period of two months; (période
comptable)
.Act. means the Copyright Act; (Loi)
.blank audio recording medium. means
(a) a recording medium, regardless of its material form, onto
which a sound recording may be reproduced, that is of a kind
ordinarily used by individual consumers for that purpose and
on which no sounds have ever been fixed, including
(i) audio cassettes (1/8 inch tape) of 40 minutes or more in
length;
(ii) recordable compact discs (CD-R, CD-RW, CD-R
Audio, CD-RW Audio or any other type of recordable or
rewritable compact disc) of 100 megabytes or more of
storage capacity;
(iii) MiniDiscs;
(iv) Removable electronic memory cards, removable flash
memory storage media of any type, and removable micro-
hard drives (Microdrive and any similar removable hard
drive);
(v) Recordable digital versatile discs (DVD-R, DVD-RW,
DVD+RW, DVD-RAM or any other type of recordable or
rewritable DVD);
(vi) Non-removable electronic memory cards or non-
removable flash memory storage media of any type incor-
porated into an MP3 player or into any similar device with
internal electronic or flash memory that is intended for use
primarily to record and play music;
(vii) Non-removable hard drives incorporated into an MP3
player or into any similar device with an internal hard
drive that is intended for use primarily to record and play
music; and
(b) any medium prescribed by regulations pursuant to sec-
tions 79 and 87 of the Act (support audio vierge)
.CPCC. means the Canadian Private Copying Collective;
(SCPCP)
.importer. means a person who, for the purpose of trade, imports
a blank audio recording medium in Canada; (importateur)
.manufacturer. means a person who, for the purpose of trade,
manufactures a blank audio recording medium in Canada, and
includes a person who assembles such a medium; (fabricant)
.semester. means from January to June or from July to Decem-
ber. (semestre)
SUBSTANTIVE PROVISIONS DISPOSITIONS DE FOND
Levy Redevance
3. (1) Subject to subsection (2), the levy shall be
(a) 60¢ for each audio cassette of 40 minutes or more in length;
(b) 59¢ for each CD-R, CD-RW or each unit of any other type
of recordable or rewritable compact disc of 100 megabytes or
more of storage capacity;
(c) $1.23 for each CD-R Audio, CD-RW Audio or MiniDisc;
(d) 0.8¢ for each megabyte of memory in each removable elec-
tronic memory card, each removable flash memory storage
medium of any type, or each removable micro-hard drive;
(e) $2.27 for each DVD-R, DVD-RW, DVD+RW, DVD-RAM
or each unit of any other type of recordable or rewritable DVD;
(f) 2.1¢ for each megabyte of memory in each non-removable
electronic memory card or each non-removable flash memory
storage medium of any type incorporated into each MP3 player
or into each similar device with internal electronic or flash
memory that is intended for use primarily to record and play
music;
(g) $21 for each gigabyte of memory in each non-removable
hard drive incorporated into each MP3 player or into each simi-
lar device with an internal hard drive that is intended for use
primarily to record and play music.
(2) Pursuant to subsections 82(2) and 86(1) of the Act, no levy
is payable
(i) in respect of a sale or other disposition of a medium that
is to be exported from Canada and is so exported, or
(ii) on a medium that is sold or otherwise disposed of to a
society, association or corporation that represents persons
with a perceptual disability.
Collecting Body Organisme de perception
4. CPCC is the collecting body designated pursuant to para-
graph 83(8)(d) of the Act.
Apportionment of Levy Répartition
5. CPCC shall distribute the amounts it collects, less its operat-
ing costs, in accordance with the Copyright Board.s decision,
pursuant to section 84 of the Act.
Taxes Taxes
6. All amounts payable under this tariff are exclusive of any
federal, provincial or other governmental taxes or levies of any
kind.
Payments Paiements
7. (1) Subject to subsection (2), the levy for a blank audio re-
cording medium sold or otherwise disposed of in any given ac-
counting period shall be due no later than the last day of the
month following that accounting period.
2) Any manufacturer or importer who paid less than $2,000 in
the previous semester may opt to make payments every semester
after having so notified CPCC. The payment is then due on the
last day of the month following that semester.
8. Every manufacturer or importer shall provide to CPCC the
following information with each payment:
(a) its name, that is,
(i) the name of a corporation and a mention of its jurisdiction
of incorporation,
(ii) the name of the proprietor of an individual proprietor-
ship, or
(iii) the names of the principal officers of all manufacturers
or importers,
together with any trade name (other than the above) under
which it carries on business;
(b) the address of its principal place of business;
(c) its address, telephone number, telecopier number and e-mail
address for the purposes of notice;
(d) the number of units of each type of blank audio recording
medium on account of which the payment is being made. The
.type of blank audio recording medium. which must be dis-
closed to CPCC refers to the type, brand name and recording
capacity of the blank audio recording medium, as well as to
any other characteristics according to which it is sold by the re-
porter or identified in its inventory;
(e) the number of units of each type of blank audio recording
medium exported, and the number of units of each type of
blank audio recording medium sold or otherwise disposed of to
a society, association or corporation that represents persons
with a perceptual disability.
Accounts and Records Registres
9. (1) Every manufacturer or importer shall keep and preserve
for a period of six years, records from which CPCC can readily
ascertain the amounts payable and the information required under
this tariff.
2) CPCC may audit these records at any time on reasonable
notice and during normal business hours.
(3) If an audit discloses that the amounts due to CPCC have
been understated by more than ten per cent in any accounting
period or semester, as the case may be, the manufacturer or im-
porter shall pay the reasonable costs of audit within 30 days of the
demand for such payment.
10. (1) Subject to subsections (2) to (4), CPCC shall treat in
confidence information received from a manufacturer or importer pursuant
to this tariff, unless the manufacturer or importer con-
sents in writing to the information being treated otherwise.
lui transmet en application du présent tarif, à moins que le fabri-
cant ou l.importateur ne consente par écrit à ce qu.ils soient
divulgués.
(2) CPCC may share information referred to in subsection (1)
(i) with the Copyright Board;
(ii) in connection with proceedings before the Copyright
Board;
(iii) to the extent required to effect the distribution of royal-
ties, with the collective societies represented by CPCC, once
aggregated to prevent the disclosure of information dealing
with a specific manufacturer or importer; or
(iv) if ordered by law or by a court of law.
(3) A collective society represented by CPCC may share in-
formation obtained pursuant to subsection (2)(iii)
(i) with the Copyright Board;
(ii) in connection with proceedings before the Copyright
Board;
(iii) to the extent required to effect the distribution of royal-
ties, with its claimants; or
(iv) if ordered by law or by a court of law.
(4) Subsection (1) does not apply to information that is publicly
available, or to information obtained from someone other than the
manufacturer or importer, who is not under an apparent duty of
confidentiality to the manufacturer or importer.
(5) Notwithstanding the foregoing, the corporate name of a
manufacturer or importer, the trade name under which it carries
on business and the types of blank audio recording media re-
ported by it pursuant to subsection 8(d) of this tariff shall not be
considered confidential information.
Adjustments Ajustements
11. Adjustments in the amount owed by a manufacturer or im-
porter (including excess payments), as a result of the discovery of
an error or otherwise, shall be made on the date the next payment
is due.
Interest on Late Payments Intérêts sur paiements tardifs
12. Any amount not received by the due date shall bear interest
from that date until the date the amount is received. Interest shall
be calculated daily at the Bank Rate effective on the last day of
the previous month (as published by the Bank of Canada) plus
one percent. Interest shall not compound.
Addresses for Notices, etc. Adresses pour les avis, etc.
13. (1) Anything that a manufacturer or importer sends to
CPCC shall be sent to 150 Eglinton Avenue East, Suite 403, To-
ronto, Ontario M4P 1E8, Telephone (416) 486-6832, Facsimile
(416) 485-4373, or to any other address of which the manufac-
turer or importer has been notified.
(2) Anything that CPCC sends to a manufacturer or importer
shall be sent to the last address of which CPCC has been notified.
Delivery of Notices and Payments Expédition des avis et des paiements
14. (1) A notice may be delivered by hand, by postage paid
mail or by telecopier. Payments shall be delivered by hand or by
postage paid mail.
(2) A notice or payment mailed in Canada shall be presumed to
have been received three business days after the day it was
mailed.
(3) A notice sent by telecopier shall be presumed to have been
received on the day it is transmitted.
------- Quidquid latine dictum sit, altum viditur -----------------
,__@ Tom A. Trottier +1 613 860-6633 fax:231-6115
_-\_<, 758 Albert St.,Ottawa ON Canada K1R 7V8
(*)/'(*) ICQ:57647974 N45.412 W75.714
---------------------------------------------------------------------
Laws are the spider's webs which,
if anything small falls into them they ensnare it,
but large things break through and escape.
--Solon, statesman (c.638-c558 BCE)
--
For (un)subscription information, posting guidelines and
links to other related sites please see http://www.flora.org/dmca/
Read: [next] [previous] message
List: [newer] [older] articles
You need to subscribe to post to this forum.
All Canadian Citizens are "Rights Holders"!
Unless otherwise stated, content on this site are licensed under a Creative Commons License.
This site and forum sponsored and managed by FLORA Community Consulting.