Bad Law

The peace and wellbeing of society is harmed by laws whose perceived unfairness or unenforceability reduces public respect for the law.

In a large body of legislation it is hard to avoid parts which will appear unfair to some, but it is foolish to unnecessarily enact provisions whose manifest unfairness will be frequently imposed on large segments of the population.

A case in point is the media levy in Canadian copyright law.

Section 3(1) of the Canadian copyright act defines “copyright”, in relation to a work, as “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever” (Unfortunately this is stated without reference to the fact that, despite this definition, the exclusiveness of the copyright is qualified by subsequent exclusions of various kinds from what is regarded as an offense under the act – but that’s just a bit of typical stupidity in the law writing and not our major source of concern at this point.)

Among the various classes of exclusions the first is “Fair dealing”, and there are several others including partial exemptions for educators and librarians. But nowhere in the entire PartIII on infringement and its exceptions is it explicitly stated that private copying is not an infringement. So in fact if I copy a picture or document for purposes not explicitly listed I am committing an offense even if noone else ever sees the copy. Clearly this is unenforceable and makes the law look ridiculous even if it is not not particularly unfair.

It is only at the end in Part VIII of the Act that we see any attention to private copying – but this applies only to “musical work” and in section 80 we find at last that copying “onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright”

If it ended here I suppose it would be bearable. (Even though the foolish unenforceable proscriptions mentioned above do tend to bring the law into disrepute they do not engender the same palpable anger that comes from being subjected to manifest unfairness.)  But what follows is the real problem.

Section 81 declares that “eligible” individuals and organizations “have a right to receive remuneration from manufacturers and importers of blank audio recording media in respect of the reproduction for private use”, and Section 82 requires manufacturers and distributors of such media “to pay a levy to the collecting body on selling or otherwise disposing of those blank audio recording media in Canada” (which levy is then of course passed on as a charge to the eventual consumer).

If there was such a thing as a dedicated “audio recording medium” which had no other purpose, then this would be imperfect but not manifestly unfair, but of course in fact there is no such uniquely purposed thing and “audio recording medium” is defined in the act to mean “a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium”.

Since any high capacity data recording medium of any kind can be used to record the information necessary to reconstruct a sound and might be so adapted for consumer purposes, this means that no matter what I want to record I may be stuck with paying a levy to the music recording industry. This makes me angry and reduces my respect for the law in general. Both effects are harmful -especially considering the number of affected consumers and the wide range of public susceptibility to such feelings of anger and rebelliousness.

What is particularly frustrating about this is the fact that there is a perfect opportunity for the sellers of music recordings to obtain compensation for whatever pattern of reproduction they expect from their customers, and that is at the point of sale. Extracting that compensation later from others who may have no interest in the product just amounts to artificially lowering the price. This may be good for sales and it may even be in the public interest to subsidize artistic products in some way, but this particular approach to gaining that subsidy is fundamentally dishonest and the legislators who were persuaded to go along with it have been conned and bamboozled.

One other aspect of this situation that is worth mentioning is that many who object to the levy might still be willing to entertain a more honestly defined subsidy – paid from honestly defined taxes. But taxes should be collected by the government not by private organizations. Giving what amounts to taxation rights to private interests puts yet another nail in the coffin of public respect for government and undermines yet again the rule of law.

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