Copyright Board Jump hearing status in air as feds launch review of section 31

Parties to the ongoing JumpTV debate are at odds over the role a joint Industry Canada/Canadian Heritage review of section 31 of the Copyright Act will play in the overall debate. While officials from the Canadian Film and Television Production Association (CFTPA) and the Canadian Association of Broadcasters (CAB) lauded news of the legislative review, Jump counsel Sunny Handa questioned its appropriateness in light of a parallel process at the Copyright Board of Canada set for this fall. In the meantime, a senior official with Industry Canada was at great pains to emphasize that no decisions have been made, and no amendments are necessarily in the cards in the increasingly bitter debate. What the feds said...Excerpted from a May 21 letter from Industry Canada and Canadian Heritage to the Canadian Association of Broadcasters and the Canadian Film and Television Production Association.The resolution of your concerns is a top priority for Industry Canada and Canadian Heritage. The Government of Canada is committed to ensuring that Canadian copyright law and policy continue to provide a strong foundation for the creation and the dissemination of Canadian cultural content and the promotion of the knowledge economy. As a result, the Copyright Act may need to be amended to address, among other things, the opportunities and challenges of the digitally networked environment. In order to fully assess the need to amend the Act, our departments will engage Canadians in a discussion on such issues. Whether persons engaged in the Internet-based retransmission of over-the-air television or radio signals should be entitled to rely on the Copyright Act’s compulsory retransmission licence will be the subject matter of a consultation paper, which we expect to release before this summer. Michèle Gervais, director of the intellectual property policy branch of Industry Canada, says any reading of a letter to the CAB and CFTPA sent last week that suggests the government is closing the door on any options is simply wrong. Gervais was reacting to the perception in some quarters that the two options for amendments listed in the letter were the only routes the two departments were considering. In the letter, signed by the departments’ two deputy ministers, the CAB and CFTPA were told that the review slated for this summer could result in: the retransmission licensing regime expressly excluding the Internet; or the retransmission licensing regime requiring compliance with new limitations and conditions appropriate to the unique concerns raised by Internet-based retransmission. But as Gervais stressed to Canadian NEW MEDIA, "we’ve made no decisions yet on the retransmission issue. A formal, wide-ranging consultation process will be undertaken very shortly, and, in this consultation process we may, or we may not, determine that an amendment to the act is required. All options are open." The May 21 letter promised a consultation paper which would define the parameters for discussion within the next few weeks, although Gervais is unable to say what form that process might take. Nor would she comment on how the legislative review would affect the Copyright Board hearing only recently agreed to by Jump and its opponents (CNM, May 3/01). CAB head Michael McCabe told CNM that it would ask the board to stay the hearings into whether Jump qualifies as a re-transmitter under section 31 of the act, though it is in the board’s hands whether it will accede to the request – something McCabe considers sensible in light of the government’s broader review. "We believe that it is not sensible to proceed with the hearing if, in fact, as indicated in this letter, the government is going to seriously consider changing the law. All parties, including JumpTV, could spend hundreds of thousands of dollars each, and then the government could change the law," he says. McCabe adds that the CAB and its partners under the Media Content Coalition (CNM, Nov. 1/00) wrote the feds on April 17 urging them to take a look at the matter. "We told them, ‘you should not let the Copyright Board determine policy in this way. Your job is to determine the policy.’ That’s what we’ve been pressing, but obviously, if the board decides to proceed with the hearing, we must decide to be there. We must make our position clear." McCabe’s comments were echoed by colleague Elizabeth McDonald, head of the CFTPA. She told CNM, "the role of the Copyright Board is not to set policy, at this point. What the government has clearly said is that there are problems with our copyright legislation, and we have to look at that." She says the Industry/Heritage review represents "a significant change in the environment." Jump lawyer Sunny Handa disagrees, however. He says the review announced in the letter came as a shock to him, and that he intends to continue working on the board proceeding until something changes officially. "I’m working with other counsel on issues surrounding our application, then suddenly, bam!" he says of the sudden news. But, he says he believes that the letter may have been more strongly-worded than intended. "I think this was initially just a letter to placate the other side and say, ‘thank you for your submission. We’re looking into the problem.’ But, someone went a little too far with the language. It’s my hope that’s the case. If it isn’t the case, then at that point I would say the government here is proceeding without any due process into this area. JumpTV is not being heard in the lobbying," says Handa. "If the stay in proceedings occurs as a result of the letter, there will be no due process there. What you’re talking about is a lobby group, effectively, pushing government to interfere with what’s going on at the Copyright Board and to remove the availability of what is currently the law from JumpTV’s arsenal." He says the government would be better served if the board proceeding is allowed to move forward. "What about a third option? Ie. we continue with the working, technologically-neutral regime that’s in place with the Copyright Board as the tribunal that will look into the matter and come up with the appropriate tariff? Why does anything need to be changed? I think the government should just ease up and let the Copyright Board do its work. If they’re unhappy with the result afterward, that’s the time to legislate." McCabe isn’t keen to see the government follow Handa’s advice, however. "That would be in his interest, but it certainly is not our view. It’s pretty clear that once programming is made available, it can be accessed all over the world. Yes, if it’s only a few people today, that’s one matter, but once you get a precedent set — presumably they expect their business to grow — and that means they are then making our programming available around the world to substantial numbers of people, undercutting the value of it. That seems to me to be a fairly self-serving argument."

Copyright Board Jump hearing status in air as feds launch review of section 31

Broadcast | May 31, 2001

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