Judge: Copyright Board had no jurisdiction.

Canada's Federal Court of Appeal in Toronto ruled yesterday (Dec. 16) that the application of a private copying levy to digital audio recorders, such as the iPod, is invalid. The court says that the Canadian Copyright Board, which imposed the tax in December 2003, had no jurisdiction to do so.

Since the Copyright Board's decision in 2003, a levy has been collected on the flash memory or hard drive incorporated into digital audio recorders. Levies range from $2 to $25 per device.

The 71-page decision by Justice Marc Noël, however, indicates that while the Copyright Board was seeking to protect music writers and performers from the "harm" caused by digital copying, the board did not have the legislative authority to impose the MP3 levies last year.

Canada's Copyright Act gives the federal board the authority to apply levies on blank media such as CDs and audiocassettes. But the wording of the act has not kept up with the new technology of MP3 players, which use an embedded memory rather than discs or cassettes, to store digital copies of songs.

The Federal Court of Appeal, however, dismissed an application for judicial review filed by the Retail Council of Canada to overturn the private-copying levy on the memory embedded in all recording devices, such as cassette recorders.

"We disagree with the Court's finding on the levy with respect to media used in digital audio recorders," says David Basskin, director of the Canadian Private Copying Collective (CPCC) in Toronto. He adds, "CPCC's Board of Directors is actively considering an appeal on this issue to the Supreme Court of Canada, and our decision on this question will be announced shortly."

Established in 1999, CPCC is a non-profit agency that represents authors, composers, music publishers, artists and record companies in collecting and distributing private copying royalties.