Copyright Board takes two issues off the table in phase one of JumpTV proceedings

JumpTV.com Canada Inc has cleared two hurdles before the Copyright Board of Canada in its bid to become a legitimate retransmitter protected by law. Last week, board officials told participants in the landmark proceedings that the availability of Internet programming by broadcasters and others won’t enter the debate, and the existence and effectiveness of border controls will be moot in the first phase of proceedings set to begin in early December. With both elements removed from the debate, JumpTV can now focus on arguing that it meets the criteria set out for retransmission under the Copyright Act. If it proves successful, a second phase of hearings will be held to set the tariff it needs to operate as an Internet retransmitter – something predecessor ICraveTV.com Inc was unable to do. The board’s rulings were in response to a two-and-a-half month long process of interrogatories, similar to the process of discovery in a court case. As part of that procedure, the Canadian Cable Television Association (CCTA) queried both the Canadian Association of Broadcasters (CAB) and the U.S.-based National Association of Broadcasters (NAB) extensively about all instances of Internet broadcasting known to them and their members. The board’s rulings would normally have put an end to the first phase of interrogatories (the collectives’ and CAB’s statement of case aren’t due to be filed until October), but JumpTV has waded back into the fray by requesting that it be allowed to pose interrogatories of its own. In a letter late last week to the board, JumpTV lawyer Sunny Handa noted that the company hadn’t posed its own questions of the parties for reasons he wouldn’t disclose, but that he was asking the board for leave to do so. At press time, the board had not yet responded. In deciding to take broadcasting by consent off the table and considering only broadcasts without consent in the first phase of proceedings, the Copyright Board heard the CAB’s and NAB’s complaints that the interrogatories were onerous and irrelevant. "It’s quite an acceptable result, from our point of view," says Jay Kerr-Wilson, counsel for the CCTA. He told Canadian NEW MEDIA that the CCTA’s questions were intended to elicit a response from broadcasters that they were using Internet technologies to deliver signals to viewers, and thus demonstrate why JumpTV should be allowed to do the same. That argument, he says, would have ensured a technology-neutral reading of the Copyright Act. "The reason I did that was because I wanted to be able to tell the board, if everyone in the communication chain is using the Internet – whether that’s by consent or not – you can’t prevent a retransmitter from using this one little part of that same technology if we can do it in a way that doesn’t infringe on other peoples’ rights… Everybody is doing it, so there’s no public policy to deny us recourse to the same technology if we can keep within the bounds of the licence." The CCTA had intended to introduce the case of Suite Systems Inc into the hearing as an example of delivering broadcast signals into homes using Internet-related technologies such as the Internet Protocol (IP). Suite Systems is a CRTC-licensed broadcast distribution undertaking which plans to offer cable TV to apartment buildings and other dwellings using IP technology. With the board ruling that the availability of programming over the Internet isn’t an issue, it’s unlikely the CCTA will pursue the Suite Systems example. According to Kerr-Wilson, however, at least the board will be careful of how it uses the term Internet. "The only reason we referred to Suite Systems is because they’re an existing user of IP technology in the delivery of distant signals. What we said to the board is ‘you have to interpret this piece of legislation in the technologically neutral way in which it was drafted. As an example of the consequences of not doing that, (Suite Systems) is already using this technology to deliver distant signals in a way that does no harm to the rights-holders. Suite Systems operates basically as a cable company – it has subscribers, it’s a secure, closed system and none of the rights-holders complain about what Suite Systems is doing because it’s completely legitimate. But, it uses technology related to the Internet." Border controls off the table in phase I In addition to taking the use of Internet technologies off the table – at least as far as they’re being used in consensual fashion – the Copyright Board also ruled that the effectiveness of border controls wouldn’t be part of the debate in the first phase of hearings. Both the CAB and NAB have requested clarification on the subject, and though their letters were not disclosed, lawyers for both JumpTV and the CCTA have indicated that the CAB continues to assert that border controls should be part of the discussion since JumpTV initiated the debate by including information about it in its original statement of case. As for NAB, the board’s ruling raises questions about its continued participation in the hearings. The association was originally allowed to participate after convincing the board that signal leakage into the U.S. gave it grounds to make its voice heard.

Copyright Board takes two issues off the table in phase one of JumpTV proceedings

Broadcast | July 25, 2001

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