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Cassette Levy Exemption Benefits Blind Canadians

Editor's Note: Editor's Note: On December 17, 1999, the Copyright Board of Canada released its decision in a case brought by the Canadian Private Copying Collective, ("CPCC"), regarding the levy to be imposed on blank audio recording media such as cassette tapes and blank CD's. The Copyright Board decided that all blank audiocassettes longer than 30 minutes in length would have a 23-cent surcharge added to their cost. Blank CD's would have a surcharge of 60 cents per unit. The article set out below provides a good summary of NFB:AE's activities in negotiating an exemption from both of these levies for blind and vision-impaired NFB:AE members.

Historical Background

In 1996, the Government of Canada passed amendments to the Canadian Copyright Act. Under these amendments, copyright holders of theatrical and musical works were authorised to charge a levy on blank audio recording media such as cassette tapes or CD's to compensate them for lost profits due to unauthorised copying of their copyrighted material. In late 1998, the CPCC, a coalition of copyright holders of musical works, advised the public that it would be seeking to impose a surcharge or levy on all blank audio recording media. The amount of the levy was to be set by the Copyright Board after a full hearing. Since the Copyright Board was not able to hold a hearing prior to December, 1998, the implementation of the levy was postponed until the Copyright Board released its decision.

In all of its interactions with the blind and vision-impaired community, the CPCC was not prepared initially to grant an exemption from the levy for individual blind and vision-impaired consumers. The CPCC maintained this view until September of 1999 when Neil Graham and I made a presentation to the Copyright Board which focused on the inappropriateness of the imposition of this kind of levy on blind and vision-impaired Canadians.

The Copyright Board Hearing

On September 21, 1999, Neil Graham and I made a 30-minute presentation to the Copyright Board on behalf of NFB:AE and the Council of Canadians with Disabilities. During that presentation, we advised the Board that many blind and vision-impaired Canadians use blank audio recording media for reasons other than the copying of copyrighted works. For example, tapes are often used for such basic things as sending letters to friends, making personal notes, recording job-related materials such as correspondence received from co-workers, clients, etc., and many other similar purposes.

We also pointed out that the existing exemption found in Section 86(1) of the Copyright Act which provides for an exemption from the levy for agencies or groups who serve people with perceptual disabilities was not broad enough. This exemption would only apply to cassettes purchased by the agency or group that were solely used by the group itself. There is no language in the Copyright Act at all to allow groups such as the NFB:AE to re-sell cassettes to their members free of the levy. Finally, we advised the Board that the exemption was too narrow in that it specifically excluded those producers of materials in alternate formats that function as for-profit businesses.

During the questions that followed our presentation, it became very evident that the CPCC and the Copyright Board Panel had both begun to appreciate our concerns. The CPCC, through its counsel, explored possible compromises that our groups would be prepared to make in order to provide an exemption from the levy in some form for Canadians with perceptual disabilities. Specifically, CPCC's counsel did indicate that the exemption in Section 86 of the Copyright Act was not broad enough and separate deals would have to be made between the CPCC and other groups that provide materials in alternate formats. Under these separate non-statutory arrangements, groups who advocate on behalf of or provide services to people with perceptual disabilities would be allowed to resell tapes free of the levy.

The Negotiations

On December 3, 1999, Neil Graham and I met with Margaret McGuffin of the CPCC and Susan Kelly of Stohn Henderson to negotiate the terms of an exemption from the levy. These negotiations were very successful. The CPCC agreed to grant an exemption from the levy for NFB:AE for any tapes purchased by the organisation either directly from an importer, a manufacturer or from a re-seller. In addition, it granted the right to NFB:AE to resell tapes to its members without attracting the levy. The CPCC would also accept receipts from individual blind or vision-impaired NFB:AE members for rebate provided that they were all submitted as part of NFB:AE's rebate request. This approach is preferable since it would allow individual members to purchase cassettes or blank CD's at the location of their choice to take advantage of sales and other price reductions. It is also beneficial for the CPCC since it would significantly cut down on its administrative costs.

In addition to the foregoing, the CPCC has also agreed to grant exemptions to for-profit producers of materials in alternate formats. These companies would have to reach an agreement with the CPCC on the appropriate terms for the exemption.

Individual consumers per se are not entitled to submit their own receipts to the CPCC for rebate. Instead, individuals must submit their receipts through NFB:AE or any other group that has made the appropriate arrangements with the CPCC for processing these receipts.

Implications

The agreement reached between NFB:AE and the CPCC is a major breakthrough. NFB:AE members who are blind or vision-impaired will be able to obtain relief from the levy while being able to purchase their cassettes or blank CD's at the location of their choice. The arrangement made between NFB:AE and CPCC represents a real step forward in that CPCC is the first group to recognise that blind and vision-impaired people use blank audio recording media for reasons that do not fall within the scope of the Copyright Act. This important concession may be useful when the next round of Copyright Act amendments are considered by the Government of Canada. Such a concession will be viewed by many as being of significant persuasive value.

Before individuals may take advantage of this new service, they will be required to sign a one-page declaration which has been produced by the CPCC. This declaration is available on NFB:AE's web site at http://www.nfbae.ca or it may be obtained from NFB:AE's national office by calling 1-800-561-4774. It would also be preferred that NFB:AE members submit their receipts in bulk to reduce administrative costs.

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