Re: [d@DCC] Limitations of private copying

From: Richard Pitt <richard _-at-_ pacdat.net>
To: General Copyright Discussions <discuss (at) list.digital-copyright.ca>
Date: 20 Mar 2005 12:13:15 -0800
References: <423DD57B.1040701@shaw.ca>

IANAL - not even close to being one - just a concerned citizen who took
the time to really read the act and commit some major time to standing
in front of the Board on the levy in 2003.

On Sun, 2005-03-20 at 11:56, David Frey wrote:
> Hi,
> 
> I'm writing a term paper for one of my courses at University relating to 
>   computers and the blank media levy.
> 
> Before I started doing any research, I was under the impression that the 
>   media levy was setup to cover the loss in sales attributed to music 
> piracy.  When I say music piracy, I mean that person A creates a copy of 
> the original music is created and then transfers the copy to person B. 
> My understanding was that it was still illegal to burn a copy of your CD 
> and give it to a friend, but that this was considered too difficult to 
> enforce so the media levy was created.
> 
> My understanding at this point is that the media levy was created to 
> make private copying legal.  Private copying quite clearly covers 
> activities like burning a copy of a CD you own to play in your car or 
> creating a mix CD comprised of tracks from other CDs you own.  To be 
> honest, before doing any research, it seemed to me like this was 
> completely legal and wasn't related to the media levy.
> 
> Now that you have some background on where I'm coming from, my questions 
> is:  What are the limitations of private copying?
> 
> Consider the following example:
> Person A buys a new CD from a store and decides that he really likes the 
> band and wants to spread the word.
> 
> (case 1) Person A rips the CD to their computer's hard drive and then 
> burns 10 copies on media which he payed the levy on.  Person A 
> distributes the copies among 10 of his friends and keeps the original 
> for himself.
> 
This is illegal under the current act and really in my mind defines the
word "pirate" - no matter how many copies are made - it is the
distribution that is illegal.

> It seems to me like this is outside of private copying because of the 
> word 'distributes'.  I'm sure many are you are familiar with the section 
> 80, subsection 2, paragraph b of the copyright act which states:
> "distributing, whether or not for the purpose of trade;".
> 
> Another thing I don't understand is whether Person A is even allowed to 
> keep a copy of the CD they bought on their computer's hard drive since 
> computer hard drives (outside of digital audio recording devices) are 
> not covered by the levy.
> 
the levy may be applied to (full size) computer hard drives in the
future - CPCC certainly has made noises in this direction but there has
not been a ruling on it AFAIK

> (case 2) Person A lends his new CD to person B.  Person B makes rips the 
> tracks from the CD to his computer hard drive and then burns himself a 
> copy for his own use.  Person B returns the original CD to Person A, but 
> keeps the copy he made.
> 
This is currently a legal grey area - lots of discussion that it is the
fact that you can lend the original and the person who makes the copy
for their own use is doing so legally under the act no matter how they
came to get the original - typified by the court's ruling that
downloading and making copies is OK - the source of the music is not the
issue, only who is doing the copying. It is not distribution.

> Does this still constitute distribution?  Person B has no intent to 
> distribute the copy, but the copy was made with the goal of distributing 
> a copyrighted work between two people.  If case 1 is prohibited and case 
> 2 is not, it's easy to design a scenario where Person A lends the CD out 
> 10 different times and then the same result is accomplished.
> 
Yup - and that is the screwy fact of life under the current act. Life
with unintended consequences.

richard

-- 
-
Richard C. Pitt			Pacific Data Capture
richard@pacdat.net		604-644-9265
http://richard.pacdat.net       www.pacdat.net
PGP Fingerprint: FCEF 167D 151B 64C4 3333  57F0 4F18 AF98 9F59 DD73

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