ASAP-CD/Pitt Interrogatory #4:
- Are any CPCC staff, management and/or executives paid any bonus
or commission or other incrementally increased remuneration based on
either the total levy collected in any period, or on the success of
any proposal to levy, or on any other basis which is influenced by the
outcome of the levy proposal process?
CPCC Objection:
While the CPCC is prepared to advise ASAP/Pitt that no
such arrangements exist, even if they did, any such arrangements would
not be relevant to the current proceeding before the Board.
ASAP-CD/Pitt Reply to Objection:
The relevance of such bonus/commission would be that CPCC
was not solely operating for the benefit of the artists, but had
self-interest, which might account for the large disparity between the
proposed levies and those applied in other jurisdictions. Accepted as
answered.
ASAP-CD/Pitt Interrogatories #6, #7 and #8:
- Are there other collecting bodies involved in collecting royalties
and/or fees for use of copyright music in Canada?
- If the answer to 6 is yes, what is the relationship of CPCC to each
of these other bodies?
- If the answer to 6 is yes, please detail what they collect (total
amounts per customer category will do), who they collect it from
(broad customer categories will do), and what basis they collect it
including fee/royalty schedules (as provided to payees in the course
of explaining what, if anything, is due, and why).
CPCC Objection:
The information requested in these interrogatories is
not relevant to the current proceeding. Further, the information
requested in Interrogatory #8 would be onerous to compile, as well as
being of no relevance to the current proceeding.
ASAP-CD/Pitt Reply to Objection:
General comments to objection: these interrogatories deal
with the calculation of fair market value of the music which CPCC seeks
levy "in respect of". If CPCC does not know what other agencies
collect royalties for artists, and what their collections consist of, then
CPCC (and therefore the Board) may not take into consideration potential
offsets to the amounts of levy CPCC wishes to collect.
#6 seeks to understand what agencies are involved
#7 seeks to know if CPCC either has information or input from any of these
agencies, or provides information to them.
#8 seeks to know more detailed information on what royalties are collected
and why, to determine what the current market rate for use of copyright
music is so as to determine if what CPCC claims is a fair rate, is in fact
a fair rate. At minimum, we suspect that CPCC has information from CD and
tape publishers since they claim that they "know" of the rates
that artists receive for each tape/CD sold.
If they don’t, then where do they get their information?
ASAP-CD/Pitt Interrogatories #10 to #24 inclusive:
- What is CPCC’s understanding of the similarities and/or
differences between copying which takes place in the course of playing
digital versions of music due to the processes necessitated by the
digital nature of the technology, and copying for which CPCC seeks
"compensation in respect of" under section {81} of the
Copyright Act?
- Does music have to be created in an analogue medium in order for it
to be considered music? If the answer is no, is there any restriction
on how music is created in order for it to qualify as
"music" under the Copyright act?
- Is it possible that sound which has been created based upon
mathematical formulae might constitute music? (Moog is such an
example)
- Does sound which embodies a section of repeated similar but subtly
different notes and/or sounds still constitute music?
- If a medium contains an ordered and reproducible stream of digital
bits, is it blank?
- What is the difference between the ordered and reproducible bits
which make up a music track expressed as a digitized stream of bits,
and the ordered and reproducible stream of bits which is impressed
upon a disk when it is formatted for use in a computer for storing
data of unknown type?
- What is the difference between the ordered and reproducible bits
which make up a music track expressed as a digitized stream of bits,
and the ordered and reproducible stream of bits which is impressed
upon a Flash RAM when it is formatted for use in a computer for
storing data of unknown type?
- What happens to the music when CD media is returned to its
"raw" form (which happens to require heating)
- What happens to the music when a Random Access Memory card is
removed from its power source?
- What is the difference between what happens to the music in the
previous 2 questions above, and what happens to the music in the
process of moving digital data from a retail-purchased CD work, though
to Random Access Memory (used for example to buffer the music in
portable CD players to eliminate track skipping) and through to the
Digital Signal Processor and its associated memory for decoding to
analogue prior to amplification?
- If there is no difference noted in the previous question above, why
is CPCC not proposing a levy on CD players similar to the one on MP3
players and other media which might be used to copy music?
- What happens to the music when a CD-RW or DVD-RW (which had
previously been used to copy music) is erased?
- How is this (what happens in the previous question above) different
from what happens to the music copied to the RAM in the process of
playing music in a portable CD player?
- How is this (what happens in the question prior to the one above)
different from what happens to the music copied to intermediate
storage (disk or RAM) in the process of a radio station using computer
technology to play music?
- What is the difference to the listener between playing music
from a CD juke-box with 100 disks in it, using the technology built
into it to choose only certain tracks and their playing order, and
playing a CD-R created by the use of copying to create a
"mix" of chosen music?
CPCC Objection:
All of these interrogatories are of a theoretical and
abstract nature, and are of no possible relevance to the current
proceeding.
ASAP-CD/Pitt Reply to Objection:
General comments to objection: these interrogatories
seek to understand what information or opinion CPCC uses or has used to
determine where the line is drawn; in the first instance, between a
blank medium and a non-blank one, and in the second instance between
copying which is required in all digital technologies in order to listen
to digitally recorded music (and which by its nature is "ordinarily
used by individual consumers", and copying which CPCC is proposing
to collect a levy "in respect of". The answers to these
questions in general will impact not only the current levy proposal, but
the potential for future proposals as they deal directly with what is
copying and what is "playing" and the difference between them.
Following is the rationale for each question:
#10- seeks to determine what determines which technology
is "copying" and which is "playing". Is this
subjective? Or is there some objective standard on which CPCC bases
their determination of what products and/or technologies should be
subject to the levy. If they have no objective standards, then the (for
example) choice (by CPCC) to levy on re-recordable media in general, and
RAM add-on cards and Flash RAM add-on cards in particular, is a
subjective one, not one based upon law or objectivity.
#11- is the beginning of the series 11-16 which seeks to
determine if the formatting information recorded on a micro-hard disk
(or a Flash disk card or chip, or for that matter any re-recordable
medium which normally is formatted prior to delivery) at the factory
renders that micro-hard disk "not blank" and therefore not
subject to a levy as is our contention. Playing the bit stream of such
formatting is music to our ears – a subjective response, but then
music is a subjective medium. We seek to determine if CPCC has any
objective information on what exactly constitutes music.
#17- is the first of a series 17-23 which seeks to
further understand what criteria CPCC uses to determine what really is a
"copy" for which they seek "compensation in respect
of". CPCC and the Board already have a copy of Richard Pitt’s
detailed preliminary objection in which is detailed a continuum of
technologies involving copying to some degree, which are involved in
playing music of a digital nature. These questions further seek to
understand what objective standard CPCC uses in determining what media
they seek levy upon since if there is no defensible objective standard,
then it is only their (CPCC’s) opinion that supports the levy upon
re-recordable media in general.
#24- see below as it is part of the next series
ASAP-CD/Pitt Interrogatories #25 and #26:
- Does any agency or organization collect a royalty anywhere in the
world from any commercial venture which has as its basis or as
surcharge the order which music selections are play in?
- What, in CPCC’s understanding, is the definition of "tied
selling" under the laws of Canada?
CPCC Objection:
Neither of these questions has any apparent relevance to
the current proceeding.
ASAP-CD/Pitt Reply to Objection:
#24- is part of a series 24-26 which seeks to understand
why CPCC feels that the creation of a compilation of songs by a private
Canadian individual might have value over that of the underlying music,
as they contend in their literature and "People are generally
creating their own compilations with their favourite tracks from many
CDs. The CPCC believes the resulting custom-made CD is worth more
than any single pre-recorded CD because it reflects the personal taste
and the choices made by the copier. However, this extra value has not
been taken into account in the amount of the levy proposed." (
)
#26- specifically seeks to understand if CPCC recognizes
that by treating individual music tracks as separate
"products", the music industry in general, and CPCC in
specific has put itself in the position of using the practice of
"tied selling" as defined by Industry Canada by not allowing
customers to purchase individual tracks separately from the unwanted
music typically included on albums. This fact should be taken into
consideration when applying an offset to the amount of copying of whole
albums, and should be part of the calculation of market value of a
track.
ASAP-CD/Pitt Interrogatories #27 and #28:
In light of the answers to the previous 2 questions above, what is
CPCC’s position on value added, if any by a private individual
creating or imposing a custom "mix" of owned music by any
technology whatever for their own use in playing music?
What % of copying by individuals is done in a fashion where it does
not fall under the strict meaning of the wording of the Copyright Act
section {80} (i.e. what % of copying by individuals is done with the
intention of giving or selling the resulting copy to another
individual – in other words is illegal according to the Act?) How
did you arrive at this amount?
CPCC Objection:
To the extent that any information responsive to
either of these interrogatories may be available to the CPCC, such
information has been gathered in preparation for the presentation of
the CPCC’s case at the end of August. Such information is protected
by litigation privilege.
ASAP-CD/Pitt Reply to Objection:
#27- CPCC cannot have it both ways – claiming that
"Neither of these questions has any apparent relevance to the
current proceeding." (referring to questions 25-26) and then
failing to provide a response regarding the more direct questions of
#27-28. Either they consider the creation by individuals of "private
mixes" of some value and have information that supports this
or they don’t, in which case they should answer #27 as "not
relevant".
CPCC should have information which they created for
previous levy arguments and which is not covered by the preparation for
this argument.
#28- objection accepted at this time
ASAP-CD/Pitt Interrogatories #30, #31 and #32:
- What is CPCC’s understanding of the Copyright Act’s provisions
for "private study" as it relates to music?
- Does CPCC propose that the amounts collected by levy compensate
"in respect of" copying which is done for "private
study"?
- If the answer to 29 above is "no", what %offset does CPCC
propose to lower the levy amount by in respect of "private
study"?
CPCC Objection:
The provisions of the Copyright Act with respect
to private study are not relevant to the current proceeding. Private
study is a defence against infringement. However, private copying does
not constitute an infringement of copyright, and therefore the concept
is not relevant.
ASAP-CD/Pitt Reply to Objection:
#30-32- we take the objection as the answer
ASAP-CD/Pitt Interrogatory #33:
- What, in the opinion of CPCC is the difference between copying music
in the process of playing it via digital means, and copying music as
relates to "compensation in respect of" under part {81} of
the act?
CPCC Objection:
CPCC is unable to answer this question because its
meaning is unclear. It also seeks a legal opinion, which is
objectionable.
ASAP-CD/Pitt Reply to Objection:
#33- again, we seek to gain an understanding of what
objective basis CPCC uses to determine what technologies deserve a levy
"in respect of". If CPCC has a legal opinion, we seek
information on it. If they have any policy or position papers other than
what they have made public to date, we seek access to them. The answers
are relevant to the determination of the market value of any one act of
copying, especially one necessitated by the technologies a private
individual uses to listen to digital music, regardless of how they came
by it.
ASAP-CD/Pitt Interrogatories #34, #35, #36 and #37:
- What, in the opinion of CPCC justifies the large difference between
the proposed levy amounts and the amounts applied in similar
situations in the United States? (i.e. 3% of value across the board)
- What, in the opinion of CPCC justifies the possibility (probability)
that any individual might pay more in levy under this proposal than
they could possibly incur in royalties under present schedules by
listening to streaming audio via legitimate Internet radio?
- What was the % of use of pre-recorded Audio Tapes (as opposed to
records) for playing music and % of copies made of Audio Tapes before
CD's were available.
- What is the % used of CD-R's for non-music copying vs music copying.
What is your source for this information? Supply the same information
for CD-RW, DVD-R, DVD-RW and Flash, RAM and micro-hard disk add-ons.
CPCC Objection:
Any information that is available that would be
responsive to these interrogatories is being prepared as part of the
development of the CPCC’s case, which will be filed at the end of
August. As a result, such information is protected by litigation
privilege. However, a preliminary statement of the CPCC’s position
has been filed with the Copyright Board, and is available on the Board’s
website.
ASAP-CD/Pitt Reply to Objection:
#34- objection accepted
#35- CPCC must have information from preparation from
previous argument for previous levy proposals which we understand is
not covered by the litigation privilege. We seek only this historic
information.
#36- objection accepted
#38- objection accepted
ASAP-CD/Pitt Interrogatories #39 and #40:
- Besides packaging, what is the technical difference between CD-R and
CD-R Audio?
- Besides the fact that it is advertised as being a portable MP3
player, what is the difference in functional capabilities between an
Apple iPOD and any laptop computer with a recent Microsoft operating
system, built-in speakers and sound card?
CPCC Objection:
The information requested is not relevant to determining
what media should be categorized as blank audio recording media on the
basis of the definition in Part VIII of the Copyright Act, nor is
it relevant to establishing the appropriate amount of the levies.
ASAP-CD/Pitt Reply to Objection:
#39-40 – CPCC cannot have it both ways. They propose a
levy upon (and in fact use it as a specific example) the Apple iPOD
based upon the fact that the manufacturer advertises it as an MP3
player, despite the additional fact that it is a general purpose
computer of some power, and has uses including but not limited to, use
as a personal digital assistant and portable information store for
moving information from home to office and backing up information from
"fixed" (non-portable) computers.
In line with other interrogatories and information given
in Richard Pitt’s preliminary objection document, these questions are
asked in order to determine what objective characteristics CPCC uses to
determine what they should or should not propose levy upon.
ASAP-CD/Pitt Interrogatories #41 to #56 inclusive:
- How much music does the average Canadian listen to each day? Of
this, how much is from a royalty-paid source? Of the balance, how much
is from owned (retail) music publications? What is the source of your
information?
- Does the purchase of a retail CD, tape, record entitle a private
individual to listen to the music on the medium a limited number of
times or an unlimited number of times? If limited, please be specific
on what is the limiting factor. Is there a limit as to where and when
the private individual might listen to the music? Is there any limit
to how the individual may listen to the music with respect to what
technology they use, who makes it, what it consists of, how loud, how
well it is reproduced, etc?
- What is the difference to the listener between a private
individual owner of a music CD listening to that music via their CD
player, and the same private individual listening to the exact same
music via Digital Audio Broadcast on their new DAB radio?
- What is the difference to the artist between a private
individual owner of a music CD listening to that music via their CD
player, and the same private individual listening to the exact same
music via Digital Audio Broadcast on their new DAB radio?
- To each of the listener and artist, what is the difference between a
private individual owner of a music CD listening to 3 chosen
selections via the technology in their CD player, and the same
individual requesting a streaming Internet site to play the same
selection of music, and listening to it via wireless Internet
connection via their IEEE-802.11 equipped Apple iPOD?
- To each of the listener and artist(s), what is the difference
between:
a private individual owner of a music CD library and a CD juke-box
player with the audio output connected to an wireless speaker system
in their house which uses 802.11 wireless technology to transmit the
digitized sound to the next room
and
a private individual owner of a music CD library and a CD juke-box
player with the audio output connected to a Virtual Private Network
(encrypted so nobody except the individual can know what is being
transmitted) over the Internet to where that private individual is
listening in a hotel room 1000 miles away from their home?
- Noting that the technologies described in the two questions above
all involve and require due to the technologies involved the use of
copying in the playing of music to some extent (and significant
copying in some situations) what is the difference between that
described in the two questions above and the same private individual
owner of a music CD library creating a compilation CD to take with
them to listen in their hotel room 1000 miles from their home?
- Does the purchase of a retail CD, tape, record entitle a private
individual to play the music on the medium in the company of others?
Is there a limit to how many others? Is there a limit to where and
when? Is any limit documented to the purchaser in the form of a
license at the time of purchase, or is it statutory (enshrined in the
laws of Canada)? If statutory, please give reference and details. If
documented at the time of sale, please give example/sample wording.
- How many times does the average music customer listen to each of the
average music tracks on a purchased CD, tape, record or other music
distribution medium within the lifetime of that medium? What is the
source of your information?
- What is the % breakdown in retail and re-manufacturing packaging
quantities of CD media sold by manufacturers and importers of levied
media? (example: what % are single CD-R packages, 10-packs, 25-packs,
100-packs, cartons with no printing, as might be identified by
different Stock Keeping Units (SKU) in an inventory system, etc.)
- How many individual, different, music tracks are there in the
Canadian copyright jurisdiction? What is your source of information?
- At "Normal" digitizing rates, how much storage is needed
to hold a single copy of every different music track in the Canadian
copyright jurisdiction?
- How many music tracks did the average Canadian purchase each year
(from 1960) prior to the wide-spread availability of digital copying
technology (1995)?
- What were the sales volumes (number of retail CDs sold) in each
major category of popular music (Rock, POP, Country, etc.) for each of
the top 10 selections in each category for the past 20 years?
- Are sales of the top 10 selections in each category going up, down,
or remaining steady year over year? Be specific for each one.
- What are the last 50 sales records for an individual album of any
type over each normally tracked period. Show total sales for each past
sales record holder, the period for which the sales record relates,
and the date when the sales record was recognized. ("sales
record" means the point at which the total sales volume for a
period surpassed the total sales volume in a similar period for any
other previous album. Periods include but are not limited to: first
day, first week, first month, first year, and album life) Example is
recent (June 2, 2002) Eminem "The Eminem Show" first weekend
(2 day) sales of 284,534 copies which is touted as a sales record.
CPCC Objection:
Much of the information requested in these
interrogatories is not available, and none of it is relevant to the
current proceeding.
ASAP-CD/Pitt Reply to Objection:
#41-56 general reply: These questions firstly seek to
understand the circumstances and impact of the changes in the purchasing
habits of private Canadian individuals with respect to the music which
CPCC seeks "compensation in respect of" because we contend that
there is no basis in law for CPCC to only use the absolute number of
copies private individuals make of whatever music comes their way, from
whatever source, as the basis upon which to seek a levy amount. If CPCC
has neither information similar to that requested, nor opinion on the
topics addressed, then we contend that CPCC has not done the homework
necessary to justify the levy amounts they propose.
The answers to these questions would go to the
determination of a "free market value" of the act of copying as
it is practiced in the current market, not as CPCC contends the value is
based upon the market as it was in the past.
The second reason for this line of interrogatories is to
provide a second (to the CPCC’s first) method of determining how much
copying the average Canadian individual can/will do to the detriment of
the artist and for which "compensation in respect of" should be
levied.
#41-42- specifically seeks to determine information on how
much music for which a royalty is not already paid an average
individual could possibly listen to within the levy period (and thus might
need to copy), for which a levy should be collected "in respect
of".
#43-44- seek to understand if CPCC has ever taken under
consideration another metric besides a per-copy amount which the artist
should be compensated "in respect of".
#45- objection accepted
#46- objection accepted
#47- seeks further clarification on CPCC’s position on
the exact differences which lead to the proposed levy on the proposed
items, and not on the items involved in the playing of music in the
scenarios outlined in #45 and #46. Acceptable answers might be some
specific length of time a copy persists, or some specific % of a recording
which is held in digital copy in a particular piece of the playing
scenario, or whether the copy persists for some specific length of time,
etc.
#48- seeks to determine if there is some license
restriction or legal restriction that CPCC knows of, placed upon a
purchaser of a retail package of music on how they may turn that purchased
music into sound which they may listen to, and further goes to the
contention that much of the copying and the uses of media which CPCC
proposes to levy is in fact part of the process of playing the music.
#49- seeks further to determine how much music the average
private individual listens to which is already royalty paid, useful in
determining what is a reasonable maximum the average private individual
might do anything which the levy seeks "compensation in respect
of". Again, if CPCC has no information in this area, we feel they
have not fully justified the proposed levy amounts.
#50- In light of CPCC’s contention that the advertised
use of an article determines that article’s inclusion in the list of
levied media (Apple iPOD) to the exclusion of other information, we make
the observation that (for example) packages consisting of thousands of
unlabeled CD-R or DVD-R disks are not "used by individual consumers
for…" the recording of music for their own personal use – and as
such should not be considered as a leviable medium. CPCC should have this
information as part of their information from importers and/or
manufacturers and is put on notice that we will ask this question again at
the next round of objections for levy for 2004-2005.
#51- CPCC has presented averages in their detailed levy
proposal which indicate that they must have this information. If they do
not, then we suspect their figures.
#52- CPCC has presented averages in their detailed levy
proposal which indicate that they must have this information. If they do
not, then we suspect their figures.
#53- CPCC is proposing levies "in respect of"
copying. The information sought should be something they have in order to
determine what the proposed levy should collect "in respect of"
the "lost" sales the industry claims.
#54- This question is relevant because it may (or may not)
directly refute the CPCC in particular’s and the music industry in
general’s contention that private copying has impacted the sales of music
the public wants (as opposed to the music the industry has tried to
sell them) and therefore the amount of the free market value of music
copied "in respect of" its retail sale.
ASAP-CD/Pitt Interrogatories #60 to #66 inclusive:
- What is the minimum per-track royalty paid to an artist?
- What is the maximum per-track royalty paid to an artist?
- What is the median per-track royalty paid to an artist?
- What is the average per-track royalty paid to an artist?
- Are there any deductions or reductions of the above per-track
royalty amounts which might be, or routinely are, deducted from the
gross amount paid, other than normal personal or corporate taxes?
(i.e. if sales targets are not met for example)
- Does CPCC propose that revenue from the levy also be used to
compensate "in respect of" copying in the technology used in
the Internet during music reception not recorded to CD-R or other
proposed levy media?
- What is CPCC’s estimate of the number of MP3 players containing
each of the levied media which will be sold in Canada in the proposed
levy period? What is your source for this information?
CPCC Objection:
Any current information that may be available that would
be responsive to these interrogatories is being developed for use in the
presentation of the CPCC’s case at the end of August. Such information
is subject to litigation privilege.
ASAP-CD/Pitt Reply to Objection:
General reply: CPCC refers to "current
information" – we will accept information no longer current.
ASAP-CD/Pitt Interrogatories #67 and #68:
- What, in the opinion of CPCC, is the difference between an owner of
a portable MP3 player with 64 Megabytes of RAM downloading a different
mix of music each day of the year for playing, and the owner of an
Apple iPOD with 10 Gigabyte disk downloading exactly the same number
and titles of songs once at the beginning of the year and listening
all year?
- Is the result of "ripping" a retail CD music track to a
digital stream encoded as MPEG2 layer 3 (aka MP3) bit stream capable
of being re-encoded in standard CD music format such that the result
of this 2 stage process is identical digitally to the original bits
encoded on the retail CD music track?
CPCC Objection:
The information requested is not relevant to the current
proceeding.
ASAP-CD/Pitt Reply to Objection:
#67- the interrogatory is relevant to the current
proceedings because it bears directly on the rationale of CPCC proposing
levying based only on the size of a particular medium, as opposed to any
other factor. We contend that if CPCC has not considered this question
then they have not done their homework with respect to any levy on
re-recordable media in general.
#68- the interrogatory is relevant to the current
proceedings as it goes directly to the concept of the difference between
"copying" and "playing" with respect to what the
levy should or may collect "in respect of". CPCC must have
done some research into the technologies involved. The interrogatory
simply seeks to know what they base their current stance upon.
ASAP-CD/Pitt Interrogatories #69 to #76 inclusive:
- If the answer to the previous question is no, how can CPCC
characterize the "ripping" process as copying since it does
not produce an exact copy?
- What is CPCC’s estimate of the number of each type of proposed
levy add-on media (Flash, RAM, micro-hard disk) which will be sold in
Canada in the levy period? What is your source for this information?
- How many digital cameras which use proposed levied media will be
sold in Canada during the proposed levy period?
- How many consumer-grade (purchase price less than $2000.00) digital
cameras are there in Canada to date?
- What is the average size of storage media included with digital
cameras sold in Canada?
- What % of purchasers of digital cameras purchase additional storage
at the time of purchase of the camera?
- How many CD media are used by the photo processing industry to
deliver digital copies of consumer or industrial photographs at the
time of film processing in Canada? What is the source of your
information?
- What is the trend in use of CD media in delivering digitized copies
of consumer or industrial photographs by photo processing businesses
over the proposed levy period?
CPCC Objection:
Any information that may be available to the CPCC that
would be responsive to these interrogatories has been assembled as part
of the development of the CPCC’s case and is subject to litigation
privilege. However, it should also be noted that much of the information
requested is not available to the CPCC and has no possible relevance to
the current proceeding.
ASAP-CD/Pitt Reply to Objection:
#69- CPCC cannot have it both ways. Either question #68
is relevant, and should be answered, or it is not and CPCC would not be
assembling information subject to litigation privilege.
#70-73- objection accepted
#74-76- If CPCC has no information on these areas, they
cannot have correctly determined the adjustment factors which must be
applied to CPCC’s current levy calculations.
ASAP-CD/Pitt Interrogatories #77, #78 and #79:
- How many businesses in Canada create non-music copies of digital
data on levied CD media and how many of each levied CD media do they
use?
- What is the growth trend in this business sector for the proposed
levy period?
- What impact on the purchasing habits of Canadians does CPCC expect
the proposed levy will cause for each of the media? What is the source
of your information?
CPCC Objection:
The information requested has no possible relevance to
the current proceeding and is not available. The evidence the Board
requires in this proceeding is evidence with respect to the percentage
of the media on which a levy is proposed that are purchased by
individuals and the percentage of all copying by individuals on each
such medium that is accounted for by recorded music.
ASAP-CD/Pitt Reply to Objection:
General reply: We object to CPCC determining what the
Board requires. We feel that the Board requires any information which
will help it determine whether or not a particular levy proposal follows
the letter and spirit of the Copyright law as it currently stands. The
possibility that any particular levy amount might run up against
consumer or business purchase resistance and therefore impact the amount
of levy collected "in respect of" copying must be taken into
consideration. These questions seek to understand what, if anything,
CPCC has in the way of information on the overall market for the
proposed levy media.
In any case, there is precedent for zero-rating either
specific media or specific use of media and it is our contention that
the levy process must consider the impact of the final decision on the
whole market for levied media so that the expected outcome of the levy
is achieved – that of compensating artists, as opposed to penalizing
anyone for the use of the levied media.
#77- While we can understand that CPCC may not know the
number of business, they should know the number of media used. If CPCC
has not determined this number by direct examination, then the number
should be able to be imputed by subtracting all other uses (for which
they either seek a levy, or which are illegal uses which they should be
allowing an offset in respect of) from the total number of levied media
imported or manufactured in Canada. There are no other uses.
#78- objection same as #77
#79- if CPCC has not done any research into this, then
neither they nor the Board (unless the information is presented by
others in this process) will have any idea of the impact our
professional opinion expects on the actual sales of levied media in
Canada and therefore the amount of levy collected "in respect
of".
ASAP-CD/Pitt Interrogatories #80, #81 and #82:
- Please provide the results of any research into Canadian private
individual Internet purchasing trends and habits with respect to the
proposed levy media.
- If CPCC has not done any research into Internet (or mail-order)
purchase of the levied media from outside of Canada, please explain
why. Provide any notes or meeting transcripts at which this subject
was discussed.
- What impact on the total levy amount collected for each medium does
CPCC expect changes in purchasing habits of Canadians as answered in
the previous question above will cause?
CPCC Objection:
Any information that may be available to the CPCC that
would be responsive to these interrogatories is being assembled as part
of the development of the CPCC’s case and will be filed, as required,
at the end of August.
ASAP-CD/Pitt Reply to Objection:
Objection accepted
ASAP-CD/Pitt Interrogatory #84:
- Has there been any consultation between the CPCC and individual
artists on previous levy settings and their effects? Provide notes
and/or transcripts.
CPCC Objection:
The CPCC is prepared to respond to the first part of
the question, but objects to providing notes and transcripts, on the
basis that they are not relevant to the current proceeding and would
be unnecessarily intrusive into the private management of the
copyright collectives. The boards of directors of all of the member
collectives of the CPCC are responsible to their rightsholder members.
ASAP-CD/Pitt Reply to Objection:
We seek something more than just a "yes/no"
answer. At minimum, we seek a list of topics discussed, which may be
limited to topics specifically related to determination of leviable media,
levy calculations, expected levy results, etc.
ASAP-CD/Pitt Interrogatory #85:
- Was there any consultation prior to its filing with the Copyright
board, between the CPCC and individual artists on the currently
proposed levy amounts and their effects? Provide notes and/or
transcripts.
CPCC Objection:
The CPCC objects to providing notes and/or transcripts
on the grounds that they are not relevant to the current proceeding and,
if available, would constitute an unnecessary intrusion into the
relationship between the collectives and the members they represent. The
accountability relationship is a direct one between the collectives and
the rightsholders on whose behalf they are acting.
ASAP-CD/Pitt Reply to Objection:
Objection accepted
ASAP-CD/Pitt Interrogatories #86 to #90 inclusive:
- From the report dated 2000-2001: Please provide the sources (names
of research companies with contact information) from where the data
was created for the following statements:
Pg 19 - Consumers purchased 45% of all CD-Rs and CD-RWs
56% were used to make private copies (music or all copies?) please break
apart the audio and remainder from this %
Pg 26 - 4th paragraph: Such a scheme has to rely on a
rough estimates... (how was this rough estimate sourced?
- Please provide examples of currently available retail technology
which may be used to listen to music on a DVD player? List the
manufacture(s) that make a DVD player that can copy and/or play music.
- What are the projected sales numbers for DVD recorders capable of
copying just music for 2003 and 2004?
- What % of these will be add-ons for computers?
- What % of these will be sold only as part of a video system (camera,
TV, VCR, etc.) where the ability to record music is either
non-existent, or incidental and not the prime function.
CPCC Objection:
Any information that may be available that would be
responsive to these interrogatories is being assembled as part of the
development of the CPCC’s case and is subject to litigation
privilege. A significant portion of the information that would be both
responsive to these interrogatories and relevant to the current
proceeding is being gathered through the current interrogatory
process, and is not yet available to the CPCC.
ASAP-CD/Pitt Reply to Objection:
#86- Since this interrogatory deals with the information
gathered for a prior levy proposal, we feel that it should be available at
this time.
#87-90- objection accepted
ASAP-CD/Pitt Interrogatories #94 and #95:
- Does CPCC expect to propose to extend the range of levied media to
include media normally used in desktop and/or server computer systems
of any kind at any time in the future? If not, why not? If so, when?
- Does CPCC plan to propose in the future that the levy amounts
collected extend to "in respect of" any or all electronic
copying done during the playing of music, regardless of how long the
copy persists or why it is necessitated? If so, when. If not, why not?
CPCC Objection:
These interrogatories are not relevant to the current
proceeding. The decisions the Board must make in the current
proceeding are focussed on the determination of whether the media to
which the CPCC has asked the Board to extend the levy are blank audio
recording media as defined in the Copyright Act, and, if so,
what should be the amount of the levy with respect to each such
medium.
ASAP-CD/Pitt Reply to Objection:
Objection accepted