Opposition to JumpTV.com intensifies as broadcasters form new media coalition

JumpTV.com has until Nov. 10 to respond to a flood of objections to its request for an Internet-specific retransmission tariff. Canada’s broadcast community and rights-holders have banded together to stop the proposed tariff, arguing that a key section of the country’s copyright should specifically exclude companies such as iCraveTV.com and JumpTV, and bring Canadian law into what it says is the Western world’s norm. A new coalition made up of Canada’s largest rights-holders, including the Canadian Association of Broadcasters (CAB), the Canadian Film and Television Production Association (CFTPA), the Canadian Motion Picture Distributors Association (CMPDA), the Canadian Broadcasters Rights Association (CBRA) and the Copyright Collective of Canada (CCC), is asking Canadian Heritage for a legislative amendment so that only a very narrow interpretation of Section 31 of the Copyright Act is possible. Section 31 allows for the re-transmission of over-the-air, distant signals, but opposition groups say the clause was never meant to include as broad-reaching a technology as the Internet. Change to legislation urged In a document submitted to Canadian Heritage and to Industry Canada, the Media Content Coalition asks for a copyright amendment that, if adopted, would put an immediate stop to the ongoing debate about whether services such as Jump and predecessor iCraveTV qualify as re-transmitters. Specifically, the group wants the Governor in Council to amend Section 31 with a new Schedule 6 reading: (1) Section 31 does not apply in relation to a communication to the public by telecommunication of any literary, dramatic, musical or artistic work if the communication takes place, in whole or in part, by means of the Internet. (2) In the event that a retransmitter becomes aware that an authorized user of its service is transmitting or has retransmitted by means of the Internet a local or distant signal provided as part of the re-transmitters’s service, the retransmitter shall immediately discontinue its service to such user. On Oct. 20, interested parties were given their chance to formally respond to Jump’s bid for an interim tariff. In comments filed with the Copyright Board, the Canadian Retransmission Right Association maintains that Jump’s request doesn’t fall within the ambit of Section 31. As for whether the board even has the authority to set such a tariff, the CRRA says that question should be part of a larger consultation process. The CAB goes even further, suggesting that "threshold" matters such as Jump’s request should be a matter for the Federal Court of Appeal to decide. The Copyright Collective of Canada (with the support of SOCAN), has also appealed for a broader hearing into the subject of Internet retransmissions. It also calls for a more thorough examination of Jump’s business model. The CCC says that, as described, it isn’t immediately apparent that Jump would qualify under Section 32. Even if it does, further review is necessary to determine if a new tariff would apply only to a Jump-type operation, or to Internet transmissions in general. Rates to prove problematic Setting a rate for such a tariff will also prove problematic. The CCC dismisses Jump’s suggestion that a percentage model be used – as it is for cable operators – saying the two are not comparable because of the differences in infrastructure investment between cable and Internet re-transmitters. The idea of selling advertising on an Internet retransmission is also a new concept, and one which the CCA says will require further study. Finally, the CCA writes that "neither regime takes into account the damage occasioned to rights holders as a result of the Internet signal being available over a wide area." CCTA argues against coalition Not everyone agrees that jerry-rigging the Copyright Act to exclude Internet re-transmitters is a good idea. The Canadian Cable Television Association (CCTA) has argued in a separate document that the Copyright Act should be technologically neutral. It writes: "If the Government is persuaded to consider amendments to section 31, CCTA believes that the specific amendments proposed by the coalition are fundamentally flawed and could potentially prohibit cable operators and other broadcasting distribution undertakings from taking advantage of all available technological innovations in the delivery of their services." The CCTA also argues that the Copyright Board does have the authority to set a re-transmission tariff for the Internet. It cites an earlier board decision to create a blanket licence for the transmission of musical works over the Internet. The Media Content Coalition, however, wants a more definitive ruling on the issue, which is why it wants Parliament to intervene with a legislative amendment to the Copyright Act. The group says such a move would bring Canada in line with other western nations that have deliberately excluded the Internet from re-transmission regimes. In its submission to Heritage and Industry Canada, the coalition states that Section 31 was enacted as a free trade measure to provide copyright protection to program owners in both countries. While the Americans specifically listed the types of re-transmitters eligible to take advantage of the regime – direct-to-home satellite TV and cable TV services – Canadian language is more technologically neutral. The act lists examples of the types of undertakings included, but it doesn’t specifically exclude any. In its paper, the coalition points to U.K. law, which it interprets as excluding Internet re-transmitters. Australian re-transmission rules also specifically exclude the Internet in the 1999 Copyright Amendment (Digital Agenda) Bill. Leakage a major concern Another key point made by the broadcasting community concerns leakage of signals outside their licensed rights area. While both iCraveTV and JumpTV claim to have developed firewall technology that would prevent the re-transmission of signals outside a given geographic region, the coalition points out that any Internet content is by nature freely available to anyone. "Because one Internet ‘hacker’ can easily make on-line content available internationally, no standard of ‘reasonable security’ or containment is sufficient. Security must be absolute, or the content is at significant risk of being transmitted around the world," writes the coalition. While the current discussions about Jump’s application resemble a regulatory version of dueling banjos, industry sources say a concerted effort by all parties is being made to bring everyone to a single table. A full consultation on the issue could be announced early next year.

Opposition to JumpTV.com intensifies as broadcasters form new media coalition

Broadcast | November 1, 2000

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