What about Hard Drives?

Further to my previous posting, and the Federal Court of Appeal’s decision last year about MP3 players, the really interesting and somewhat uncertain legal issue is whether computer hard-drives ought to fall within the section 80(1) exemption and levy scheme. Again see my earlier musings on this topic.

Computer Hard-drive

The question is whether hard-drives are an “audio recording medium” and thus fall within the private copying exemption of Section 80(1). Our Copyright Board, in on Dec 12, 2003, did decide that removable micro hard-drives are not ordinarily used by individuals for the purpose of copying music and therefore refused to place a levy on these items at that time. The Board refrained, however, from commenting or speculating on normal computer hard-drives. Likewise the Federal Court of Appeal did not address the issue of hard-drives and whether they are an “audio recording medium”.

Arguably computer hard-drives are, these days at least, ordinarily used by individuals for the purpose of copying music; including when ripping and burning blank audio CD’s. Most new computer operating systems also come with software functionality to rip and burn CD’s and can store compressed audio recordings on one’s hard-drive for subsequent playback (e.g. Windows Media Player). Furthermore, hard-drives, unlike MP3 players, do appear to have a “media” element to them - they are capable of being swapped or added to a desk-top computer. External hard-drives are also readily available and function to expand one’s storage capacity.

However, at the same time, a not unreasonable argument could also be made that a hard-drive is not an “audio recording medium”, because it is not ordinarily used to copy music (but rather to run and store programs and non-music data) and that is more akin to micro hard-drives.

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