Clock running out on C-48 as broadcasters, stakeholders urge further changes

The Standing Committee on Canadian Heritage will likely review proposed legislation on Internet retransmission on May 27 and 28, but it’s still unknown how the regulations underlying the proposed law will take shape in the wake of last-minute changes recommended by several parties to the debate. While some stakeholders are couching their positions in conciliatory terms, the Canadian Association of Broadcasters (CAB) has maintained its silence in the run-up to clause-by-clause debate. CAB president/CEO Glenn O’Farrell has not been made available for comment, leading many to wonder how vociferously the organization will oppose Bill C-48 in its current form. It’s clear, however, that the CAB has been lobbying at least some MPs on the committee to kill the bill, putting them in the position of arguing against a measure promised by the government to protect their interests. Draft regulations on the issue circulated May 1 gave Internet retransmitters reassurance that their activities would be covered by a compulsory licence (CNM Update, May 2/02). However, final comments on the draft have been submitted by at least JumpTV.com Canada Inc. JumpTV lawyer Sunny Handa tells Canadian NEW MEDIA that he submitted some proposed changes but wouldn’t divulge details. It is likely that the CAB – which slammed a similar set of guidelines in March using strong language (CNM, Mar. 27/02) – would have made a twelfth-hour appeal to quash proposed regulations to entrench Jump and others’ right to operate. A news release promised by the CAB on May 2 was never issued. As the debate looms, MPs are already receiving a crash course in retransmission policy and the CAB is working behind the scenes to convince committee members that the bill represents a broken promise by Canadian Heritage minister Sheila Copps. For his part, Canadian Alliance MP Jim Abbott has reversed his position on the bill, no longer promising the legislation a smooth ride through committee. "The easy ride was predicated on the presumption that the minister was going to follow through on her word – her word which was, very simply, that there would be the equivalent of an Internet carve-out," he tells CNM. "Recognizing that there was a behind-the-scenes fight between Industry and Heritage that was driving this, the position of the government was that we weren’t going to do a specific Internet carve-out as there has been around the world, but we were going to do the equivalent by regulation. Clearly that has not turned out to be the case at all. What has turned out has been something that has, in my opinion, created a lot of legitimate concerns on the part of producers and owners of programs…They have a tremendous amount of sympathy from me…I really think that the minister is playing with fire on this one." Abbott says the CAB has been in contact with his office and that he hopes the legislation will undergo a major change before coming before the Heritage committee. "There is always the thin hope that the minister is going to listen and realize the potentially serious damage that this could do to our entire Canadian broadcasting regime. I’m hoping that she’ll listen and follow through on her original position." NDP member Wendy Lill says she hasn’t been contacted by the CAB, but says she’s aware of lobbying efforts by the association. "I know where they’re coming from," she tells CNM. "They don’t want the idea of compulsory licensing…I have no problem with C-48. I see it as a stopgap measure to make sure that retransmission on the Internet is dealt with, covered under the copyright legislation. I know that Abbott and the CAB are trying to railroad this but, frankly, this is just one of many things we have to deal with under copyright. There will be efforts by CAB to stall it and keep it from going through." While broadcaster opposition to the bill is growing, several parties are expressing their willingness to accept the compromise position and a desire to put the divisive legislation behind them. Reacting to the May 1 draft regulations, Canadian Association of Internet Providers (CAIP) president Jay Thomson was generally positive, especially about the inclusion of a three-year mandated review of the ban on banner advertising. "We’ve been thrown a bit of a bone on the banner advertising ban. At least they’ve agreed to examine the issue at some point…At this point we’re motivated to get this moving forward. We’re willing to work with the regulations as drafted because, while not perfect, they appear to represent a compromise and we don’t want to delay this. There are businesses waiting to get going…The creator groups? We’re still not convinced that they’re fully onside with Internet retransmission. We’re worried they may try to delay the process, which would be in their favour." Jay Kerr-Wilson, senior counsel at the Canadian Cable Television Association, echoes CAIP’s position. "We’re very pleased that the government has chosen the options that we favoured, which was to define new media retransmitters with reference to the exemption order rather than to the use of technology, which was a concern of ours," he says. "We’re obviously very pleased that they recognized that there’s no need to have a territorial restriction that specifically applies to cable operators and, while we continue to have some concern about the impact of a sort of very broad prohibition around banner advertising, we think that the option that they’ve chosen is probably fine, and we’re very pleased to see the mandatory three-year review." He adds that, given current uncertainty in the Internet advertising and interactive television markets, a three-year review should be timely enough to sort through issues raised by new business models. It is widely accepted that Parliament may prorogue for the summer by the first week of June, meaning C-48 could die on the order paper unless the government uses special procedures to resurrect the bill this fall.

Clock running out on C-48 as broadcasters, stakeholders urge further changes

Broadcast | May 16, 2002

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