That's not correct: The media fees are not to compensate for fair use,
since by the definition of fair use, no money was owed.
The media fees compensate for copying onto blank media that would not
otherwise be legal. This fee hasn't been addressed much in Canadian court
--- accept for the spectacular loss by the recording industry! --- but
reading lawyers' opinions on how it would likely be interpreted in court is
fascinating.
For instance, I can buy a CD, copy it onto a blank CD, keep the copy and
give you the original --- that's clearly legal in Canadian law, because the
media fee allows copying for personal use.
If I buy a CD, copy it, and give you the copy, that's probably not covered
under the media fee, because then *I* did the copy, but *you* are using it,
so the copy on the blank media wasn't for personal use.
If instead I buy the CD, hand it to you, you do the copy, and then you give
the original back to me, that's clearly legal. It matters who does they
copying, even though the typical consumer wouldn't understand the
difference. The end result is the same, but the process matters.
If I threw a brick through the window of the local CD outlet, stole a CD,
took it home and copied it onto a blank CD, the copy is legal and I have
good title to it... but, of course, still face charges for the crimes I
committed acquiring the original.
None of the above are fair use; that's what the media fee compensates for,
copying that would otherwise not be legal.
You shouldn't say this "compensates for illegal copying". The clearer
statement is that the fee "compensates for copying, to blank media, for
personal use, that would otherwise be illegal." It's very important to
note that, having paid the fee, personal-use copying onto blank media is
legal.
So most copying of music in Canada is legal. A notable exception would be
if you downloaded an MP3 over the net to your hard drive. The fee has not
(yet) been collected on hard drives, and thus this downloaded copy is not
covered under this law. Your only legal defense would be fair use, and
downloading the latest hit song to play without buying the CD is not fair
use. You'd be screwed. If you downloaded it and first burned it to CD,
then you could probably claim fair-use for the copy on your hard drive.
This has not been tested in court.
The fee is set based on studies of what percentage of blank media of each
type is used for recording songs, and how many songs get stored on each on
average. It is completely disconnected from any other form of illegal
copying; for instance, the fee does not compensate content creators for
people who buy a CD, make 10,000 copies, and sell the copies; that wasn't
personal use, and it doesn't matter how much such activities cost the
creators of the music, it isn't part of what the fee is supposed to cover.
For another quirk of Canadian law: If you buy an IPod, the fee is charged
on it (and it's a significant part of the purchase price). If Apple were
to put a sample song on the IPod, it would be exempt from the fee, because
the fee only applies to media which has never had a recording on it. But
if Apple did that, you could only copy music to your IPod as allowed under
fair use, a concept which is only defined by the courts, and there being no
court cases I know of dealing with MP3 recorders, who knows if you could
ever legally use your IPod?
Flip side: Since an IPod bought in Canada is subject to the media fee, all
music the owner puts on it is legal, period. It doesn't matter how you
got the music, if it's your IPod, and you are the one who put the music on
the IPod, it's legal. Plus, the creator of the music gets paid for it.
No fuss, no muss.
In Canada.
(But make sure none of your friends adds music to your IPod when you're not
looking!)
If you buy a commercial cassette tape, and record over the music that came
on it with some other song, that copy is not legal.
The fee is "not fair": I paid it for years on blank CDs before I ever
recorded a song to one. But I haven't been able to come up with a system
that is as simple and low-cost and unhackable. It used to cost me a couple
of dollars a year unfairly, but hey, I wouldn't be a Canadian if I wasn't
paying taxes for things I didn't use :-).
I am not a lawyer; this is not legal advice.
----- Message from Johan Hübner <[EMAIL PROTECTED]> on Fri, 04 Mar 2005
09:56:37 +0100 -----
To: Slim Devices Discussion <discuss@lists.slimdevices.com>
Subject: Re: [slim] US Supreme Court
Well - your canadian socialism is probably rather slack compared to our
swedisg :-). But something that needs to be remembered is that blank
media charges (which are being introduced EU-wide, but embedded in the
price of the media rather than added on-top at the time of the purchase
which is the canadian method) is to compensate the copyright holders for
legal copying, ie fair use (US & Ca) and statutory private copying (EU).
It is quite often journalists muddle this up as being a charge to
compensate for illegal copying.
But - as I said - copyright is as hot as ever in the European legal
society and many believe it can help them walk on water in court
proceedings. I wish we could sometime get back to the intention of
copyright in the first place - top go give authors and other creators a
fair compensation for their contribution to arts and culture and to give
them a economic incentive to continue creating.
Personally I believe that copyright-enforcement is turning into a farce
in the US and in EU.
/Johan
--
Johan Hübner --!!johan at hubner.se!!--
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