Home -> Law Blog Directory -> Copyright Law Blogs -> Michael Geist

Copyright Law

: Michael Geist

Sorting Through The Spin: The Liberals and the iTax

By Michael Geist

The issue of Liberal support for an "iTax" hit a fever pitch this week with competing releases - the Liberals stating they are against it and the Conservatives releasing a radio ad that says the Liberals support such reforms.  That led some to ask for evidence to sort out the competing claims.  This post is an attempt to do that.

First, it is clear that the radio ad is factually wrong.  The Liberals now unequivocally state that they oppose an iPod levy.  The radio ad says of the Liberals, NDP, and Bloc "now they all back an iPod tax."  There isn't much room for interpretation here - the Liberals have stated their current policy and the Conservative ad says the opposite.

Second, even if the ad is wrong, some claim that the Liberals have flip-flopped on the issue.  For example, Stephen Taylor makes that case, pointing to their support for a motion on the private copying levy from earlier this year.  He adds that the press release says one thing, the vote another.

This position requires a more careful examination of the motion and the vote itself.  This saga begins with a motion in March at the Standing Committee on Canadian Heritage stating:


That the Committee recommends that the government amend Part VIII of the Copyright Act so that the definition of "audio recording medium" extends to devices with internal memory, so that the levy on copying music will apply to digital music recorders as well, thereby entitling music creators to some compensation for the copies made of their work. 

That motion, brought forward by Bloc MP Carole Lavallee, was supported by the Liberals, NDP, and Bloc.  Five of the six Conservatives voted against it, but Conservative Chair Gary Schellenberger voted in support.  Contrary to some speculation, his support was not a requirement of the chair.  Indeed, he says as much in the evidence from the vote:

The vote is tied. It is up to me. I wrote a letter and I'm on the record, and with that, I am going to support my letter.

In other words, the Conservative Chair of the committee was on the record in supporting extending the levy and stood by his support.  In fact, I believe the vague wording in the motion - there is no mention of iPods - was a function of mirroring the language Schellenberger used in his own public letter.

The Committee vote had the effect of bringing the motion to the House of Commons, where it was debated for a few hours and ultimately supported by the Liberals, NDP, and Bloc MPs (Schellenberger voted against).

The problem is that the vote is not conclusive in making the case that there is or was support for an iPod tax since the motion only calls for extending the definition of what could apply to the levy system. So what exactly did the motion mean?  According to Carole Lavallee, the Bloc MP who brought forward the motion, it was about a principle, not specific legislative reform.  She stated:

The vote is on the principle. We agree that it is not a vote on the words as they are set out one after another. This vote is on the idea that creators should be paid and remunerated for their work.

That broader framing is consistent with comments from the Liberal MPs who spoke to the motion, who were generally quite critical of the motion itself.  For example, Liberal Heritage Critic Pablo Rodriguez was critical of the motion once it came to the House of Commons for debate (though he did believe it applies to iPods):

With respect to content, it is clear that the motion is not specific enough, particularly when it comes to the digital devices targeted by the new levy. What exactly are we talking about? We know that it would apply to iPods because people use them primarily to listen to music, but would it also apply to the BlackBerry and iPhone? That is a good question. Will it also apply to home computers? In short, will it apply to all devices that have a memory and can record and play back music? We think it is absolutely critical that we differentiate between these devices based on their primary use. The primary use of a device that will be subject to the levy is a new element we have to consider in this debate.

This matter deserves to be taken seriously, but a motion that does not take this distinction into account will not help. However, I want to say that the work that went into this motion is not for nothing. It reminds us that we still have a lot to do to deal with current problems that need solutions. That is what I wanted to say about the content of the motion.

Ruby Dhalla was even more critical, asking whether the motion even applied to iPods:

There are many flaws with the motion that we have identified in talking to many individuals, to stakeholders and to organizations. For example, the motion does not talk about devices that would be levied. What about the BlackBerrys and iPods that are being used? It is our belief that we must study this further to ensure it makes sense. We must ensure that the categories for this particular motion would be identified.

Dhalla also sought to explain why the Liberals supported the motion at committee:

As a member of the Standing Committee on Canadian Heritage, along with my colleague, the member for Saint-Bruno-Saint-Hubert, who is the official critic for the official opposition on the Canadian Heritage file, we were most interested in having the motion brought forward to the Chamber where we could have an opportunity to debate, discuss and, hopefully, highlight for the government the need for copyright legislation to ensure that we modernize it and that it is reflective of the needs of the organizations, the stakeholders, the advocates and, most important, the artists.

That support for more debate was also central to the comments from Scott Simms, the third Liberal MP to speak to the motion:

I commend my colleague for doing this and I commend the private member's bill simply because it proliferates the debate. We need this debate and discussion in the House before we arrive at the next copyright bill, which is coming, I anticipate in the spring, but I am sure we will find out about that very shortly.

Moreover, immediately after the vote, the Liberals told the media that the vote did not signify support for the policy.  Rodriguez told the Wire Report:

"We support the best tool there is to compensate creators. It could be the levy, it could be something else. We're in the process of consulting, of discussing [this] with artists, with groups."  Rodriguez said the Liberals voted in favour of the motion to express "the principle of supporting artists."

My read is that it is certainly possible to conclude that the Liberals did not flip-flop - they voted for the principle of compensation for artists, which is consistent with what they said this week.  That said, there is room to interpret the support for the motion as support for extending the levy to iPods.  If the Liberals were opposed to that reform, the obvious course would have been to vote against a motion they themselves described as flawed.

Full post as published by Michael Geist on December 18, 2010 (boomark / email).