Canadian music industry representatives are reopening an old debate about MP3 players that could see the average price of the devices climb by as much as $75.

The Canadian Private Copying Collective, an association of composers, recording artists, publishers, and record labels, is asking the Copyright Board of Canada to reintroduce a controversial extra fee into the sale price of MP3 players in Canada.

David Basskin, a member of the CPCC's board of directors, said it's time artists be compensated for the copying of their files onto the digital devices.

"We'd all like lots of things to be free. But those who create the music deserve to be compensated. When you go and buy an iPod, the retailer gets paid, so you can't say that the people who make the music should get a free ride."

The effort on the part of the CPCC comes just over two years after the Federal Court of Appeal struck down a similar levy attached to the price of the hard drives of MP3 players. At the time, these didn't fall into the category of "audio recording media" because, unlike CDs and cassettes, they can't be separated from the device that plays the sound on them.

Under current legislation, the Copyright Board isn't allowed to place a levy on a playing device like a CD or tape player.

The decision meant that manufacturers had to reimburse the $15 and $25 retail surcharges on MP3 players to consumers. In total, the CCPC had to reimburse almost $4 million.

"They're really getting quite existential here. They're asking the copyright board to look into the soul of an iPod and determine its true identity. That's hard to do."— David Fewer, intellectual property law professor

Now they're asking the Canadian Copyright Board to consider MP3 players as a whole, hard drive included, under the category of "audio recording media."

"When you look at the device as a whole, it's hard not to believe that its sole purpose is to record audio," said Basskin. The CPCC is now seeking levies ranging from $5 to $75, based on the capacity of the player's hard drive.

Player vs. medium debate

But some analysts are skeptical about whether the new approach will work given current copyright legislation.

The problem, said David Fewer, an intellectual property law professor at the University of Ottawa, is that MP3 players fall into both the categories of "player" and "medium."

He added: "They're really getting quite existential here. They're asking the copyright board to look into the soul of an iPod and determine its true identity. That's hard to do."

Basskin said he doesn't anticipate any difficulty.

"When Parliament passed the law in 1997, they could have attached a shopping list of media but they chose not to do that. They chose to let the law flex with the technology because there were none in 1997," he said. "What the court hasn't dealt with yet is the status of an iPod [as a whole]."

Legal alternatives 'impractical'

Brian Gray, an intellectual property lawyer with McCarthy Tetrault, said he doesn't anticipate the levies will be approved, despite Basskin's argument. But he said he's happy to see the issue back before the Copyright Board.

Both Gray and Fewer recognized the legal need to compensate music producers when music is copied, especially in cases where "private" copies are distributed to friends and online peers.

Fewer said that while it's unclear if the levy will be approved, the CPCC's initiative is a step in the right direction because the other legal alternatives are impractical.

"It's a good way to get our government to start thinking about policy in a different way than it has," he said. "Digital copyright under the past few years has always been dictated by the big labels, which adopt the perspective that fans are thieves and that the lock 'em up and sue em strategy is the only way to go."