Work remains to be done on piracy front

Well done, Bell ExpressVu. You have single-handedly carried the grey market dispute all the way to the Supreme Court and won. It was a long and often lonely fight and you prevailed. You deserve the thanks of everyone in the broadcasting industry. The more senior members of our industry will remember that even before Bell ExpressVu and Star Choice existed these issues were being championed by Luther Haave of WIC/Allarcom, so we have him to thank too. However, the work has not been completed. Here’s what still needs to be done: Firstly, the Charter issue. The Supreme Court decision did not resolve the question of whether section 9(1)(c) of the Radiocommunication Act infringes the basic right of freedom of expression that is enshrined in section 2(b) of the Canadian Charter of Rights and Freedoms. As long as members of the industry work together their combined effort will see this issue resolved in our favour. As well, Industry Canada and the Department of Justice must remain committed to an aggressive and comprehensive attack whenever the Charter issue is raised so that an Appeal Court will have a complete record of the evidence needed to finalize this pesky argument once and for all. Secondly, Parliament has to get to work and finish the job it started when it amended the Radiocommunication Act in 1991. It’s almost done, but right now the bad guys don’t respect the law because it has no teeth. Consider that they are selling pirate cards for $500 on the street. Right now the laughable fines assessed in court – $50 per access card in one piracy case – are nothing more than a licence to break the law. The solution is to create minimum, per card, monetary penalties for breach of the statute; and they have to sting. Also, it is time to enact minimum statutory damages. Section 18 of the Act creates a powerful right of civil action so that those that are being harmed can seek injunctions and damages in the civil courts. The process of obtaining injunctions has worked very well. Our success rate has been 100 per cent. By contrast, the proving of damages has been extremely cumbersome. We have found that it engenders a tremendous waste of resources because, in each case, we have to repeat the process of preparing, obtaining and presenting essentially the same evidence. Add in the fact that illegal users subvert a myriad of Canadian policy initiatives and you will appreciate how extensive the proof must be in each court case. In addition, how can we accurately calculate the real cost to Canada? It should not be so hard. To avoid logistical nightmares for the litigators and judges the answer is for Parliament to enact new provisions that recognize that there is a certain minimum level of economic and financial damage caused by the use of any pirate device. That number (at least $4,000 per card by my calculation) should be crystallized in the statute. A statutory damage provision would create a minimum fixed amount that would be extracted from the criminal for each card that they handle. It would apply to users too. The U.S. long ago realized that statutory damages are the only logical way of assisting the courts to get the job completed efficiently. It is time to do the same thing in Canada. Thirdly, everyone involved in the creation of Canadian broadcasting content and its exhibition in Canada has to realize that the satellite television pirates have organized themselves into a powerful group. They are spending money on public relations campaigns and courtroom strategies that have gathered the attention of the press and the public. We pride ourselves on being the experts in audio-visual marketing and communication. It is time to put these skills to work and win back the hearts and minds of so many Canadians who somehow mistakenly think that U.S. channels are better than the ones we have here in Canada. All we have to do is accomplish these three "simple" goals and total victory will be ours. Bill McKenzie is a senior partner with Crawford, McKenzie, McLean, Wilford, Anderson & Duncan LLP. He was legal counsel to Bell ExpressVu in its case against Can-Am Satellites before the Supreme Court.

Work remains to be done on piracy front

News | 05/09/2002 4:00 am EDT

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