CAB fears ‘right of making available’ would entrench ‘corporate oligopolies’

The Canadian Association of Broadcasters (CAB) fears that copyright legislation could be used to entrench "corporate oligopolies" if a new exclusive right of making available provision is introduced into the Copyright Act. If that happens, the CAB warns that music creators and performers would have to authorize use of their works. Broadcasters are at odds with creators and authors on whether "right of making available" should be included in copyright legislation currently under review. The Directors Guild of Canada (DGC) and the Directors Rights Collective of Canada, for example, argue that the right should be granted not only to performances and sound recordings, but also for works. But the CAB argues that policy makers need "to recognize that creator control must always be realistically weighed against impacts on access." In its submission filed last month commenting on digital copyright issues set out in the Consultation Paper on Digital Copyright Issues, released in June by the departments of Canadian Heritage and Industry Canada, the CAB points out that too much control by the author of works could eliminate the music available to radio stations attempting to adapt and advance their business to new technologies, like the Internet. "From an access perspective, such a degree of control (by creators) becomes worrisome when rights owners are large corporations or corporate oligopolies vested with the ability to deny access to or seek unreasonably high rates of remuneration for a significant repertoire of works," the CAB brief states. The association points out that if the Copyright Act is revised to grant "right of making available" rights, it could be used by creators "to disable legitimate and non-deleterious uses," such as radio stations engaged in streaming audio. The CAB argues that creators are adequately compensated for use of their works by rights fees paid, and that explicit authorizations of individual users and exclusive licences are not necessary to maximize the value of the work of the creator. "Unlike television programming, for which users will pay a significant licence fee if guaranteed territorial exclusivity with respect to rights (since television stations compete on the basis of their unique programming), traditional and on-line ‘radio’ services have access to the same repertories of music but compete with each other on the basis of their compilations of music and recordings and non-musical elements (news, weather, sports, traffic, DJ talk, contest, etc.)," the CAB notes. "As such, an ability of rights holders to confer exclusive licences would not assist creators as creators…from realizing the full value of their works." In a speech this week, CAB president/CEO Michael McCabe suggested that Canadian broadcasters could some day be cut off from buying lucrative U.S. programming as viewers are offered the opportunity to order episodic television shows directly from American programming on the Internet (see story in this issue). As well, the CAB argues that technology has made it possible for music studios, in their role as rights holders, to predominate the field. The record companies, the CAB, contends, could argue that they can realize more value for creators by cutting out the middlemen – particularly broadcasters engaged in streaming their programming. In its brief, the CAB points out, however, that broadcasters "serve extremely important public purposes and provide real value to consumers." Broadcasters not only provide wide access to works, the way they package music differently promotes "a diversity of voices and expression within Canadian society." The CAB argues that broadcasters are legally bound to promote Canadian cultural policy objectives, such as ensuring Canadian content gets on the airwaves. On the other hand, the DGC argues that the "new use" technology of the Internet is different from other developments used to disseminate music, such as the phonogram, radio, and cable, satellite and MDS retransmission. The guild points out that unlike previous developments, the Internet does not require large capital investments and is not regulated; it is a public network open to all that permits private and widespread dissemination of intangible works instantly. In its submission to the government, the Canadian Cable Television Association (CCTA) recommends the Copyright Act be amended to grant to performers and sound recordings a new right of making available. But the cable association says, "The right should be subject to the provisions of sections 67 and 68 of the Act that require collectives to file a proposed tariff for the use of the subject matter," which would promote public access to the works. "The CCTA submits that the preferred approach to ensuring the rights holders are adequately compensated while avoiding the exercise of anti-competitive monopoly power, would be to make performers’ rights of making available and sound recording makers’ rights of making available subject to a statutory licence to provide similar treatment as that given to the authors," the cable association states in its brief. "This would have the benefit of greatly simplifying the process of clearing the rights necessary to offer sound recordings on-line and would increase the supply of music in the digital marketplace to the benefit of consumers."

CAB fears ‘right of making available’ would entrench ‘corporate oligopolies’

Broadcast | October 26, 2001

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