Copyright law will be central to Internet regulation, says former iCraveTV lawyer

McCarthy Tetrault’s Peter Grant, a lead lawyer against ICraveTV in 1999/2000, addressed a conference at the University of Toronto organized by the Centre for Innovation Law and Policy last Friday dealing with copyright issues in the digital age. The following is an edited transcript of some of his comments. There are distinct features of the Internet that make it problematic to impose conventional broadcast style regulation. There are also some signs that the impact of the Internet is not going to be – as some people thought – to eat the broadcasters’ lunch. But rather, you will see, as so many new media have done, they will exist side by side with the old media. There’s many reasons why this will happen and one of the reasons, you’ll be pleased to know, relates to copyright law…. ICraveTV, as you may recall, was a website operator, not an ISP, who was taking signals off the air and streaming them – some people would say re-transmitting them – to potential users who would click on the web site and see the television signal. No permission or authorization was sought or obtained from the stations involved, or from the copyright owners of the programs involved, which gave rise to the whole dispute. There’s no dispute about two things. One, this may be broadcasting within the Broadcasting Act, but the CRTC has exempted that. Two, there’s no dispute that as a webcaster, an operation like iCraveTV has to pay the royalties involved. There is no Tariff 22 defence here because it is not an ISP. So, the issue, when it comes right down to it, is focused on whether the web site operator in this scenario can successfully argue that it’s like a cable company and entitled to a compulsory licence, instead of having to negotiate program rights on its own. That gets us into the real thorny nest of copyright issues and the Internet for the makers of audio-visual works. They are the ones most concerned about the border-less aspect of the Internet. They are, needless to say, reluctant to licence Internet rights to anyone until those issues are resolved, particularly the issue of borders. They resist the use of collective licensing because they don’t get the ability to actually address the harm a particular technology may create. Now, what are my conclusions? First, we have had an interesting lesson here in the last few years about the Internet. I guess the first thing that we want to say is the Internet, despite what many people want to think, is not immune from legal rule. The second thing we can say is that copyright is going to be a key element in control. When you come to that conclusion it’s interesting to note that copyright policy and cultural policy have the same aim. Both of them are highly dependent on the ability to distinguish between operations operating in one country and operations operating in others and then happen to overflow into this country with unforeseen consequences. It’s interesting also that it’s reached the point that is often made by people in the Internet business. They often argue that all they are looking for is technological neutrality. Technological neutrality has an interesting and positive sense to it. No one would be against that in general, but you quickly realize that they don’t want technological neutrality. In broadcasting, they want a complete exemption from technological neutrality because, rather than be treated as the rest of the broadcasting industry and subject to licensing regulation, they want to be exempted. And, they’ve convinced the CRTC that their technology, given its unique perspectives and its unique characteristics, does not warrant the degree of licensing and regulation that we consider to be appropriate in the field of television and radio broadcasting. Similarly, in the area of copyright law, we see a lot of acceptance of technological neutrality. But, the fact of the matter is that to properly deal with the Internet, you need to take the time to understand it, to appreciate that it is different from other forms of technology, and they have to be dealt with in appropriate ways.

Copyright law will be central to Internet regulation, says former iCraveTV lawyer

News | 02/07/2001 5:00 am EST

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