AU music activist lashes out at assault on blank media levy

Activist and levy advocate Phil Tripp -- who, in posting the paper on themusic Web site, described as "totally untrue" rumours that he was in the pay of "Kazaa, Altnet, Apple or anyone else on this issue" -- said the paper was likely to appear on the Australian Record Industry Association (ARIA) Web site as a rebuttal to efforts to allow consumers to copy their own purchased music to formats such as CD-Rs, tape and digital music players.

Tripp said the paper was "forwarded to me by a supposed rogue ARIA member in advance of its posting so I can't verify that it is a final proofed argument, but I thought it merited rebuttal". Tripp includes his own notes against each of the points made in the paper and described its arguments as "rather specious and self-serving".

ZDNet Australia's  own efforts to contact ARIA chief executive officer Stephen Peach to verify whether the paper indeed details ARIA's position on the issue have so far been unsuccessful.

According to the paper, the record industry "does not accept that the rights of copyright owners and creators should be compromised" on the propositions on which the blank media levy proposal appears to be based.

These, it said, were that private copying is occurring in any event; that there is little that can be done to control or prevent that copying, given current technology and that, irrespective of the rights of copyright owners and creators, the only effective "solution" is to compulsorily licence the activity in return for the payment of some form of levy or royalty.

"This is why the record industry believes that copyright policy makers internationally should continue to focus their efforts on ways to improve copyright laws to better deal with the challenges presented by new technologies".

The author described the introduction of a blank media levy as being "a flawed, cumbersome and very unsatisfactory 'solution' which, in all likelihood, could exacerbate the very problem it is seeking to address. They cited a number of "practical concerns" in relation to the blank media levy scheme.

The paper said that digital storage media were used to store many different types of copyright material -- not just music recordings -- such as personal photo libraries and general data storage or back up.

"Our understanding of the proposal submitted to the government is that a consumer who purchased a digital storage medium for non-infringing uses would be entitled to obtain a refund on application to the body collecting the levy.

"This appears to us to be a cumbersome approach to protecting the rights of non-infringing consumers. In practice, given the time and cost involved, it is likely that many consumers who are legitimately entitled to the refund will be discouraged from applying for it," the paper's author said.

The paper also pointed out the availability of other forms of recordable media such as hard drives, PCs and portable media players used to store and play recordings.

"In order to ensure that the levy did not have an anti-competitive effect, it would have to be applied to all possible recordable media, both fixed and portable.

"The levy may also have to be applied at different rates, in recognition of the most common uses of the various forms of recordable media."

"That said, it would seem to the record industry to be impossible, at a practical level, to devise a levy scheme that could be applied across all current and future recordable media in a fair and equitable manner," the author said.

The author added that "the amount of any levy received in respect of the private copying of sound recordings, including the recording artist's share, is likely to be relatively low" and that it is unlikely that the amount would "even approach a fair measure of compensation for the almost unfettered and prejudicial use of such recordings."

The author also questioned the credibility of the basis for distributing the levy income to sound recording copyright owners and recording artists.

"Even if it were possible to develop a justifiable basis for allocating a proportion of the levy to sound recording interests, it is clear that no information could be gathered as to the actual recordings being copied and how many times each was copied. As such, any distribution of income to those entitled would be, at best, an educated guess."

The author also takes a particular stab at the role of a blank media levy in allegedly aiding online file-sharing services such as Kazaa to legitimise their business.

"Proposals for a blank media levy are typically predicated on the explicit or implicit proposition that the source copy (from which the private copy is made) is a legitimate or authorised copy.

"Of course, given current technology and, in particular, the enormous number of unauthorised copies of recordings which are currently sourced from the Internet, that proposition is simply untrue in many cases.

"Given the substantial concerns expressed by the record industry in relation to the adverse impact of file-sharing services, the industry would be opposed to any measure which sought to legitimise the copying of infringing copies of recordings.

"Of course, any legislation could be expressed in terms that only allowed private copies to be made from authorised copies of recordings.

"However, any provision that seeks to distinguish between infringing and non-infringing sources would be almost impossible to enforce and would be likely to create uncertainty amongst consumers and rightsholders alike".

However, Tripp angrily disputed that the blank media levy would legitimise the copying of infringing copies. "Nobody said this would.

"And this proposal to the government and industry does nothing of the sort.

"This argument is kneejerk reactionary pandering to fears that verge on propaganda rather than honesty".