CNM Update

Government to close section 31 loophole Section 31 of the Copyright Act will be closed to Internet services in the coming weeks, according to comments by both Industry Canada minister Brian Tobin and Canadian Heritage minister Sheila Copps. At the Canadian Association of Broadcasters convention in Ottawa this morning, the pair indicated that they are hoping to introduce amendments to the Act that would effectively remove the section’s protection for retransmission from online companies such as JumpTV.com Canada Inc. and ICraveTV Inc. In a speech to delegates, Copps said: "And section 31, which provides a loophole for Internet providers to steal your product, must be closed. They must understand that we are talking about intellectual property, which is as important in the broadcasting industry as in any other area, and we cannot allow a loophole to permit pirates to steal your product. I want to signal to you today that along with my colleague, Mr. Tobin, who indicated to you this morning, we will be seeking immediate Cabinet approval to introduce amendments to this section of the act as quickly as possible." For his part, Tobin told reporters following a speech that there would be a "legislative response" on the table within weeks. "It’s a question of getting time on the agenda and completing the analysis of the kind of legislative package that ought to be brought forward. That is something that both Sheila Copps, as minister of Heritage, and I, as minister of Industry, are committed to seeing happen as quickly as possible." The move will come barely a week after replies were due on a first round of submissions to a consultation paper issued last June (CNM, June 28/01), and a review process unofficially launched last May (CNM, May 31/01). It’s likely many in industry will question the legitimacy of that process given the speed at which the departments have moved. Since last February’s Canadian Film and Television Production Association annual meeting at which Tobin told Canadian NEW MEDIA he favoured an exclusion for Internet companies to the section (CNM, Feb. 21/01), it may have been a foregone conclusion that there would be some kind of Internet carve-out as advocated by the country’s broadcast industry. There are no details available at this time on how the proposed legislation will be drafted, but it will likely resemble amendments advocated by the broadcasters and content producers last November under the Media Content Coalition umbrella (CNM, Nov. 1/00). At the time, the group urged the Governor in Council to amend Section 31 with a new schedule 6 reading: Section 31 does not apply in relation to a communication to the public by telecommunication of any literary, dramatic, musical or artistic work if the communication takes place, in whole or in part, by means of the Internet. In the event that a retransmitter becomes aware that an authorized user of its service is transmitting or has retransmitted by means of the Internet a local or distant signal provided as part of the re-transmitter’s service, the retransmitter shall immediately discontinue its service to such user. Copps told reporters she’s hoping to have any legislation introduced in the House before Christmas, and "with speedy support from colleagues it should not be a great amount of time." She added, "this will be a short-term amendment to close that loophole, precisely because even though the JumpTV situation has been resolved, there is nothing preventing another pirate from basically trying to use the airwaves through the Internet and basically try to use the Internet to make money from somebody else’s creative property." Presented with transcripts of Copps’ comments, Jump president Farrel Miller was quick to lambaste the minister. "If these comments are true, then she would indicate her total ignorance to the situation at hand," he told Decima Publishing. "For her to refer to what we’ve suggested as ‘stealing’, and not paying, is abhorrently ignorant. JumpTV has always gone on the record – going back 15 months ago – that we’re going to pay a tariff just like the satellite operators and the cable operators pay a tariff. For her to characterize what we’ve talked about doing as ‘stealing’ is really slanderous to what we’ve always said." Miller says he would be more charitable had Copps not referred to the company’s business model as "stealing", and understands that the company may have ultimately lost its fight to operate under section 31 on legal grounds. That said, however, he’s incensed by the terminology used by the minister. The Canadian Cable Television Association (CCTA) was also quick to respond to the ministers’ comments, telling Decima Publishing that: "The CCTA believes that the minister’s comments reflect the objectives of the consultation process that has been underway since the beginning of summer. Clearly the government has indicated its desire to amend section 31 of the Act to make the scope of the Act more certain. The comments filed by the CCTA and other parties as part of the consultation process will assist the government in developing a legislative response that will prohibit the infringing uses referred to by minister Copps, but that will continue to allow legitimate uses of retransmitted signals by cable operators and other BDUs." The CCTA has consistently opposed a technology-specific carve-out to the section.

CNM Update

Broadcast | October 29, 2001

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