Parliament should resist temptation to outlaw Internet retransmissions

JumpTV is at the centre of a copyright battle that could change how broadcast signals are distributed in Canada, and which companies are allowed to retransmit them. In a recent letter to senior bureaucrats at Canadian Heritage’s Copyright Policy Branch and Industry Canada’s intellectual property branch, JumpTV’s lawyer, Sunny Handa, suggests it’s foolhardy to prohibit Internet companies from carrying local TV signals when, in the future, the Internet will become the main conduit for carrying all digital content. The following is an edited excerpt from his letter. I understand that a number of rights holder organizations are lobbying to have (Section 31 of the Copyright Act) changed in order to exclude Internet retransmissions. For the reasons outlined below, I do not think that the law should be modified in substance (other than to provide clarity) and am firmly opposed to any modification of Section 31 that would in any way exclude Internet retransmission. This is a critical convergence issue with far-reaching consequences which must be given the benefit of extensive public debate. The current retransmission regime was a result of a negotiated agreement between Canada and the United States in the Free Trade Agreement. Canada was forced to concede on this point and in return, arguably, received other concessions in that agreement. Unilaterally changing, or restricting, the applicability of this section would not result in any trade or other benefit to Canada. Further, Internet retransmission is currently not excluded under any international convention or other treaty to which Canada is a party. The question becomes whether or not the retransmission of free over-the-air broadcast signals over the Internet is beneficial or harmful to the Canadian public, the ultimate beneficiary of Canadian copyright law (subject to Canada’s international commitments). Copyright law, it should be remembered, is a creature of statute intended to enhance the social welfare of Canadians. A number of groups lobbying for the exclusion of the Internet from cable retransmission are promoting foreign interests and are seeking to enhance the outflow of copyright revenues from Canada by nullifying the retransmission regime. These interests are seeking to do through the back door what they couldn’t achieve through the front door. The strategy is a simple one. It is clear, from existing trends, that the Internet will eventually replace cable systems as the single method of distribution of television, radio and other content. In other words, the Internet will gradually replace the existing cable system. This convergence is already beginning given that cable and Internet transmissions share the same wiring and simply operate based on different protocols. Further, Internet, radio and even some streamed video services are growing in popularity. It is expected that one network system will eventually become the sole medium for the distribution of digital work. Should Heritage or Industry Canada recommend changes to Section 31 of the Copyright Act so as to exclude Internet re-transmissions, this would eventually result in the extinction of the entire retransmission regime in Canada. If this was truly Canadian public policy, then the Free Trade Agreement would not have been negotiated so as to provide a compulsory licensing regime – it would have simply provided the foreign rights holders with direct control over licensing their content. The Internet retransmission of signals is supported by exactly the same arguments as the current cable television retransmission of these signals. Without a strong argument to the contrary, (demonstrating that Canadian public welfare will be harmed), there should be no change to the existing regime.

Parliament should resist temptation to outlaw Internet retransmissions

News | 05/03/2001 4:00 am EDT

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