Rockin' Proposal for Tunes Sharing

Charlie Angus, the NDP Member of Parliament and musician, has a reputation for speaking his mind. Last week, he did more than just speak out. Angus single-handedly shook up the Canadian copyright landscape by promoting two reforms -- an extension of the private copying levy to audio recording devices such as iPods and greater flexibility in the fair dealing provision, the Canadian equivalent of fair use.

The iPod levy proposal sparked immediate controversy. Canada slapped a private copying levy on blank media such as CDs more than ten years ago. It has generated hundreds of millions of dollars, but previous attempts to extend the levy to devices were struck down by the courts as outside the scope of the law.

The Angus bill would amend the law by expressly bringing devices within the levy scheme. The problem is that few devices these days are limited to audio. In a world dominated by multipurpose devices that play audio and video, run applications, and provide phone service, it is next to impossible to separate the audio functionality. In other words, the levy ends up potentially covering everything -- iPods, iPhones, BlackBerrys, Androids, iPads, and even personal computers.

Creator groups were quick to express their support for the proposal, but the Conservative government made it clear it is a non-starter from their perspective. Industry Minister Tony Clement labelled the plan "nonsensical," while Canadian Heritage Minister James Moore dubbed it the iTax, arguing "consumers deserve lower, not higher taxes."

Private members' bills rarely become law, but the levy issue seems destined to percolate for the foreseeable future. On the same day Angus tabled his bill, Bloc MP Carole Lavallée introduced a Standing Committee on Canadian Heritage Committee motion expressing support for the levy extension. It was supported by NDP and Liberal MPs (as well as the Conservative committee chair), which will send the issue to the House of Commons for discussion.

While the iPod levy proposal garnered the lion's share of attention, Angus' fair dealing motion may ultimately have a bigger impact. Under Canadian law, fair dealing permits the use of copyright works without permission for a limited set of purposes, including research, private study, news reporting, criticism, and review.

Fair dealing is regularly relied upon by the public -- by students when they quote from texts, journalists in their reporting, authors writing books or book reviews, and scientists engaged in research. Yet because the fair dealing categories are limited, the provision does not currently apply to consumers recording television shows, artists creating parodies or satires, or businesses introducing innovative new goods or services.

Rather than adopting an exception-by-exception approach vulnerable to changing technologies, the Angus proposal merely opens to the door to other possible categories of fair dealing. In many respects, it is a made-in-Canada version of the U.S. fair use provision, since it shares similar flexibility, but is grounded in Canadian rules for determining what qualifies as fair dealing.

The approach is precisely what thousands of Canadians supported during last summer's copyright consultation since it seeks to strike a balance by ensuring that uses are fair, not necessarily free. Interestingly, while Moore and Clement were outspoken in their criticism of the levy proposal, they kept mum on the fair dealing motion, perhaps recognizing that it is consistent with their stated desire for a technology-neutral, forward looking approach to copyright.