Options all on table as Parliamentarians debate final shape of C-48 legislation

After an intense two weeks of hearings, members of the Standing Committee on Canadian Heritage are poised to vote on the controversial Bill C-48 to clarify the role of Internet retransmitters within the Copyright Act. After hearing from final witnesses on June 11, the committee will proceed to clause-by-clause examination of the legislation on Monday, June 17. Though the committee will likely follow the wishes of the ministers of Industry Canada and Canadian Heritage that the bill be passed without regulations attached, it seems sure that C-48 will go to third reading in the House of Commons with an explicit moratorium on the operations of companies such as JumpTV.com Canada Inc. for at least one year (CNM, May 31/02). Both the government and members of the Media Content Coalition opposed to Jump’s proposed activities are reportedly working on an amendment to C-48 that would explicitly state that Internet retransmission won’t be permitted while the CRTC revisits the new media exemption order this summer, or before final regulations are approved by the standing committee next spring. Committee members were bombarded with options for dealing with Internet retransmission during the hearings as any consensus to this point had fallen completely apart. During a committee meeting on June 4, members heard that industry players opposed to Internet retransmission are urging an explicit ban on it even as government officials continue to advocate a two-part, year-long process of further hearings and consultations. Compounding the fractious nature of the debate, members heard from JumpTV on June 4 that it would abide by all the conditions imposed on cable and satellite TV players if granted the protection of the same compulsory licence, something its opponents have been at pains to avoid mentioning throughout the debate. Jump TV president Farrell Miller has maintained for several months that Jump would pay relevant copyright fees, and last summer told a representative of the Canadian Television Fund (CTF) that it would also contribute to that pool (CNM Update, Aug. 23/01) During the June 4 hearing, representatives of the Canadian Motion Picture Distributors Association (CMPDA) told committee members that they, along with several other parties including the Canadian Cable Television Association (CCTA) (the Canadian Association of Broadcasters was not named, but later confirmed it was part of the initiative) had come to an agreement on new language for a proposed carve-out amendment to section 31 of the Copyright Act that could be passed immediately and eliminate the need to draft any regulations at all. The CMPDA suggests accomplishing this goal by defining, within s.31 of the Act, a new media retransmitter with reference to the 1999 CRTC new media exemption order, then redefining a retransmitter as "a person who performs a function comparable to that of a cable retransmission system, but does not include a new media retransmitter." In presenting its views, CMPDA VP Susan Peacock told members that the alternative to immediately passing legislation that would ban Internet retransmission is a lengthy process that will likely not accomplish the same goal. She noted that, once passed into law, officials in the departments of Canadian Heritage and Industry Canada would likely reject any recommendations from the committee that do not meet with the government’s policy goals of allowing at least some restricted Internet retransmission. "The officials have been very adamant in their goals…Technically, ultimately, regulations are a matter for the Governor in Council….It is not certain that the recommendations of this committee will be the ones that ultimately find their way into regulation," she said.CMPDA president Douglas Frith added: "You can tinker with the regulations all you wish, but if you really want to have an impact, you’ll create an Internet carve-out and send it back to Parliament." While the industry appeared to present a united front in favour of an immediate, explicit Internet carve-out, the waters were muddied slightly by vacillating language from CMPDA co-panelists, the Canadian Film and Television Production Association (CFTPA). In its presentation, Stephen Stohn, chair of the CFTPA’s copyright and international policy committee, outlined the organization’s agreement with any one of three options on the table – a carve-out, separation of the copyright and broadcasting elements of the dispute, or clarification only of the copyright elements on the understanding the CRTC might later choose to regulate some aspects of the Internet. Stohn explained that his association’s willingness to accept any of the three options is based on the group’s belief that Internet broadcasting represents the medium of the future. In fact, he says one of the projects that he’s personally involved in – the new Degrassi series – is in discussions with Microsoft Corp. to broadcast the show online but within the confines of a "walled garden." On the other end of the spectrum, Miller said the company had no intention of acting as pirates. Quoting a retransmission tariff rate of $0.70 per subscriber paid by cable companies to collectives, Miller repeatedly said Jump would pay the same, as well as abide by licence conditions including Canadian content quotas, simultaneous substitution and payments into funds such as the CTF. Miller hammered home his main argument that while content owners might object to compulsory licences, there could be no basis for denying Internet companies the same protection as cable and satellite TV distributors. Answering concerns by standing committee members Chuck Strahl and others that technological protection measures restricting access might be hacked, Miller said again and again that regulation would be sufficient to protect the broadcast industry. "Don’t take our word for it," he urged several times. "Implement legislation that requires the signal be kept in Canada." He added, "If we don’t keep our transmissions in Canada, we will be breaking the laws in our country and the United States." To prove his point, he stated that if it took five weeks to shut iCraveTV.com down in U.S. courts, it would take just two weeks to do the same to JumpTV. Miller’s counsel, Sunny Handa, confirmed the suspicion of many observers that if the government’s proposed process for moving forward is adopted, Jump’s plans to retransmit over-the-air signals would have to be shelved until regulations are put in place that would allow the practice. Handa said he feels the "carpet has been pulled out from under us" as a result. Miller added that six months of careful work by stakeholders and department officials toward reaching a draft position on the regulations has been in vain, and that department officials he spoke to were "embarrassed" and have apologized for the current turn of events – something officials from both Heritage and Industry deny. The committee also heard from several major league sports groups opposed to C-48 on June 6, including well-publicized testimony by the National Football League. In his evidence, Jeff Pash, the NFL’s executive VP and general counsel, told committee members that the league would have to find alternative ways to deliver football programming other than over-the-air if Internet retransmission becomes protected by law. Reiterating the position of many copyright holders that Internet transmissions can’t be made secure, he said the NFL might examine specialty and pay broadcasts as an alternative to selling its rights to traditional network broadcasters. "If you could effectively gate the Internet," Pash argued, "totalitarian regimes would be doing so."

Options all on table as Parliamentarians debate final shape of C-48 legislation

Broadcast | June 14, 2002

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