Satellite TV decision upholds ability of stakeholders to protect against rights theft

I read with interest the editorial in the May 1 edition of Canadian NEW MEDIA and was particularly intrigued by the writer’s observation that "the Supreme Court of Canada’s decision last week on grey market satellite TV was a body blow to the advocates of free speech". The editorial then proceeded to express the hope that "a Charter challenge to the ruling will hopefully set aside the Radiocommunication Act’s less-than-constitutional laws regarding the reception of foreign programming services…" I was puzzled by Canadian NEW MEDIA’s editorial stance, given that the e-mail I received alerting me to the fact that the latest edition was available also implored me to respect its copyrights and not to share my password with non-subscribers. In light of CNM’s position on freedom of expression with respect to the theft and fraudulent acquisition of foreign satellite services, the plea for me to respect Decima’s copyright seemed a little like Elmer Fudd complaining about too much violence on television. Certainly, CNM must agree that if I choose to share my web site password with colleagues, to save them the cost of buying a subscription, I am merely exercising my constitutionally protected right to engage in free expression. After all, I have the right to tell people my password if I so chose, and those people have the right to freely access the content produced by CNM, whether or not they have actually paid for it. Further, I can only assume that my right to free expression includes the right to acquire a new account using false identification and credit card information so that I may continue to exercise my constitutionally protected right to provide free access to CNM to anyone who wants it. In fact, my right to free expression would probably also allow me to engage the services of someone to hack into Decima’s web site. After all, we are not going to let a little thing like revenue and a business plan get in the way of my fundamental right to free expression, are we? Isn’t it time we put an end to the greed and avarice of online newsletters that want to erect a Berlin Wall around their content and be coddled by protectionist cultural crutches like copyright laws? While CNM is not the only publication to argue that theft and fraud should be lawfully permitted acts protected by the Charter of Rights and Freedoms, I found it ironic that this article was published in a newsletter which depends almost entirely on subscription revenue and protection of its copyright to survive and appeared in the same edition in which half of the feature articles dealt with copyright. As the Court pointed out, the Radiocomm Act is part of an overall legislative scheme that also includes the Broadcasting Act and the Copyright Act. It may deal specifically with signal theft, but one of the reasons for prohibiting signal theft is to protect the rights in the content carried by those signals. Canadian broadcasters have the exclusive rights to the majority of the programming that is shown on HBO, Showtime, and the other U.S. services carried on DirecTV, and earn their revenue from the advertising and subscriptions that are sold against that programming. Program producers earn their revenue by licensing content separately to broadcasters in both Canada and the US. Canadian broadcasters will no longer have the incentive to acquire popular and expensive programming if that same programming is being given away in the black market or is made available on the grey market by programming services that have not acquired Canadian rights. When those programs are accessed in Canada on services that don’t have Canadian rights, the rights of the program producers and the Canadian licensees are being infringed. Even if the rights to a certain program have not been sold in Canada, that does not mean that the program producer must forfeit the ability to find a Canadian licensee in the future and must simply give that program away for free in this country. Freedom of expression is a core value in Canadian society and access to information is a key component of that freedom. However, the Charter’s guarantee of freedom of expression does not permit copyright infringement anymore than it protects other forms of illegal content.

Satellite TV decision upholds ability of stakeholders to protect against rights theft

Broadcast | May 16, 2002

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