Private copying levy
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A private copying levy (also known as blank media tax or levy) is a government-mandated scheme in which a special tax or levy (additional to any general sales tax) is charged on purchases of recordable media. Such taxes are in place in various countries and the income is typically allocated to the developers of "content". (A distinction is sometimes made between "tax" and "levy" based on the recipient of the accumulated funds; taxes are received by a government, while levies are received by a private body, such as a copyright collective.)
Levy system may operate in principle as a system of collectivisation, partially replacing a property approach of sale of individual units.
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[edit] Questions on fairness
A difficulty that immediately arises is the practical impossibility of devising a mechanism for distributing the proceeds to copyright holders that is considered "fair" by all copyright holders and consumers. Implemented systems are typically restricted to music and may distribute the proceeds proportionally to a measurement of sales of CDs in music shops or amount of air-play on radio or the like. This ignores other distribution channels such as the Internet, and it disproportionally benefits popular artists and publishers of the related products. Fairer methods would arguably involve extensive sampling of purchasers to determine actual recording behaviour, or alternatively paying all musicians at a simple flat-rate (the preferred method will depend on ones political views).
An implementation question that arises is whether the tax applies to any type of copyrighted work or is restricted to a limited field such as music. If it is restricted then the issue arises of how to collect the tax on media which can also be used for other purposes. The options include:
- Collecting the tax on all media, regardless of the end use, and ignoring the injustice to purchasers with non-covered uses.
- Allowing taxed and untaxed media to be sold, but with only the taxed media providing the copyright-relaxation benefits.
- Collecting the tax on all media but allowing purchasers to claim a refund for media applied to non-covered uses.
[edit] Legal effects
It is theorized that such levy may be linked to a corresponding relaxation of copyright law, by permitting the recording of copyrighted works on media for which the tax has been paid. However, there is little evidence to support this theory. On the contrary, lobbyists representing publishers and copyright holders have increased pressures to implement more restrictive laws, even on countries that have implemented private copying levy. In 2007, it was reported that International Intellectual Property Alliance put 23 of the world's 30 most populous countries into Priority Watch List, even though United States, which was not in the list, has laws that are more liberal than the laws from the countries within the list.[1]
Even when restricting levy system to devices that primarily play music, this itself creates loopholes that prevents collecting levies from cellphones, PDAs, and other all-in-one portable electronic devices. As a result, copyright holders will have to rely on more draconian laws to collect levy, and to increase rates of already levied product to recover perceived losses, which run against the political trends toward eliminating levy systems.[2]
[edit] Regulations
Examples of countries operating such schemes:
[edit] Australia
Australia does not have a private copying levy. Although legislation to create one was passed in 1989, it was declared unconstitutional in Australian Tape Manufacturers Association Ltd v Commonwealth.
[edit] Canada
A blank media levy was introduced in Canada in 1997, by the addition of Part VIII, "Private Copying", to the Canadian Copyright Act. The power to set rates and distribute the returns is vested in the Copyright Board of Canada. The Copyright Board has handed the task of distributing the funds to the Canadian Private Copying Collective, which is a private organisation. The Copyright Board has retained the task of setting the rate of the levy.
In Canada:
- The levy applies to "blank audio recording media", such as CD-Rs.
- The levy is paid by importers and manufacturers of such media sold within Canada (and typically passed on to the retailer, and passed on to the purchaser).
- The levy is collected regardless of the purchaser's end use of the media.
- Only copyright holders of sound recordings of musical works are entitled to a share of the proceeds. (Note that these copyright holders may be separate persons from the holders of the copyright in the musical works themselves; ie. the composer or performer. Holders of copyrights in sound recordings are those who record or authorise the recording of a song; often this is a recording label.)
- The Canadian Private Copying Collective has devised a scheme by which the proceeds are to be allocated to registered sound recording copyright holders. As of 30 July 2004 none of the collected funds had yet been disbursed.
- In conjunction with the levy, the Copyright Act allows individuals to make copies of sound recordings for their own private, non-commercial use. They may not distribute the copy. Contrary to popular belief, the private use grant can be implemented independent of the levy system, since the rights granted by private use clause is already covered by fair dealing.
- On December 17, 2004, a Canadian judge ruled that the blank media tax no longer applied to MP3 players such as Apple Computer's iPod. Before this, the rates were $2 for players with less than 1 GB of capacity, $15 for players up to 15 GB, and $25 for players 15 GB and over.
- On 2007-2-12, CPCC asked the Copyright Board of Canada to reintroduce the extra fee of $5 to $75 into the sale price of MP3 players in Canada.[3] In addition, CPCC also demanded levies of $2 to $10 for memory cards, 8 cent increases to CD, CD-R Audio, CD-RW Audio and MiniDiscs.[4]
Canada's current levies are as follows: $0.29 per unit for Audio Cassette tape (40min or longer); $0.77 per unit for CD-R Audio, CD-RW-Audio & MiniDisc; $0.21 per unit for CD-R, CD-RW (non audio)
[edit] Finland
It has been said that Finland's blank media fee is one of the highest. As of 2007, the fee is, in Euro cents:
- 0.50/min for analog audio tapes (e.g. 30 cents for a 60 minute cassette)
- 0.76/min for analog video tapes (e.g. €1.37 for a E180 tape)
- 20 cents per disk for CD and MiniDisc
- 60 cents per disk for DVD
- €4 to €18 in five steps depending on capacity for digital audio players and personal video recorders. The maximum is for devices with disk sizes above 150 GB. The minimum for devices with memory up to 512 MB.
There is no fee on mobile phones or computers.
[edit] Germany
The world's first private copying system was created in Germany in the 1960s. It was a result of earlier successful litigation by GEMA against an audio equipment manufacturer in GEMA v. Grundig.
[edit] Sweden
In Sweden there is a fee called "privatkopieringsersättning" (private copy retibution) earlier called "kassettersättning" (cassette tape retribution) on compact cassettes, blank CDs, blank minidiscs and other storage media. The fee is 2.5 öre (0.025 SEK) per minute of storage for analog media or 0.4 öre per MB for re-recordable media or 0.25 öre per MB for write once media. The money collected (224436151 SEK as of 2005) is handled by Copyswede.
[edit] United States
[edit] Audio home recording in general
17 USC 1008, from the Audio Home Recording Act of 1992, says that non-commercial copying by consumers of digital and analog musical recordings is not copyright infringement. Non-commercial includes such things as resale not in the course of business, perhaps of normal use working copies which are no longer wanted. It's unlikely to include resale of copies in bulk and Napster tried to use the Section 1008 defense but was rejected because it was a business.
From House Report No. 102-873(I), September 17, 1992: "In the case of home taping, the [Section 1008] exemption protects all noncommercial copying by consumers of digital and analog musical recordings" .
From House Report No. 102-780(I), August 4, 1992: "In short, the reported legislation [Section 1008] would clearly establish that consumers cannot be sued for making analog or digital audio copies for private noncommercial use".
The AHRA was based on the understanding that consumers were not liable for copies to taxed blank media using taxed digital audio tape recorders. It is a logical stretch to assume that this attempt at exemption covers copying using untaxed media and untaxed devices.
[edit] Blank music CDs and recorders
17 USC 1008 bars copyright infringement action and 17 USC 1003 provides for a royalty of 3% of the initial transfer price. The royalty rate in Section 1004 was established by the Fairness in Music Licensing Act of 1998. This only applies to CDs which are labeled and sold for music use; they do not apply to blank computer CDs, even though they can be (and often are) used to record or "burn" music from the computer to CD. A similar royalty applies to stand-alone CD recorders, but not to CD burners used with computers.
Thanks to a precedent established in a 1998 lawsuit involving the Rio PMP300 player, MP3 players are deemed "computer peripherals" and are not subject to a royalty of this type in the U.S.
