U.S. gov’t, industry pressure Canadians to overhaul copyright protection regime

American copyright holders are stepping up efforts to kill proposed legislation to entrench the compulsory rights of Internet retransmitters in this country as the U.S. government has pointedly criticized Canada for flaws in its intellectual property laws. This month the largest U.S. copyright holders in entertainment and sports wrote their government asking it to put pressure on Canada’s legislators to prevent Bill C-48 from creating a right for JumpTV.com Canada Inc. and iCraveTV.biz from retransmitting over-the-air signals via the Internet. It came as U.S. Trade Representative Robert Zoellick maintained Canada on the annual "Special 301" report of countries to watch on intellectual property law issues. Earlier this month, it was reported by The Hollywood Reporter that a group of copyright holders in the U.S. had written to the U.S. Trade Representative asking for his help to kill Bill C-48 (see story in this issue). According to the HR, the letter was drafted by a group calling itself the Copyright Assembly, which includes the Motion Picture Association of America, the National Association of Broadcasters, the Screen Actors Guild, the Writers Guild of America, and the major sports leagues including the National Football League, the National Hockey League, and Major League Baseball. The letter was drafted by Covington & Burling trade counsel Geralyn Ritter, who has refused to publicly release the document. Instead, she directed inquiries to NFL.com spokesperson Brian McCarthy. McCarthy says the letter asks the recipients – Zoellick, commerce secretary Don Evans, and register of copyrights Mary Beth Peters – to have "conversations with Canadian lawmakers" to highlight the U.S. industry’s serious concerns with the legislation. "The letter…was written to express our serious concern regarding the legislation," he tells Canadian NEW MEDIA. "We believe that it threatens the copyright protection in our works that are carried on the TV broadcast signals. We’ve asked these representatives for their assistance in preventing this result." He adds that the Assembly is an ad hoc affiliation working only on the Canadian retransmission issue. While he can’t speak for the other members, McCarthy says the NFL has been a longstanding opponent of companies such as JumpTV and iCrave. "We played an important role back in 1999 and 2000 with iCrave and the eventual injunction and that issue. We have been monitoring the evolution of iCrave from the sidelines…One of the things that something like an iCrave has been talking about is the technology. They would be able to prohibit Internet users in the United States, for instance, from seeing this. "We don’t believe the technology exists to keep this in Canada. We have not been approached by iCrave or any other company to provide permission and are dubious of the technology at this point." NFL managing brand carefully McCarthy notes that the NFL has carefully managed its brand assets, authorizing no one to stream games online – even members of the NFL Internet Network (the NFL and 32 team sites), which only have permission to stream highlights. "The NFL and other members (of the Assembly) have had longstanding traditions of protecting copyrights throughout the evolution of the media: radio, TV, satellite and now into cyberspace. We believe that our telecasts or material are very valuable, is ours, and that we should have the right to control that distribution." When it is pointed out that Canada’s Bill C-48 could become law as early as the end of this month, McCarthy declines to comment on what further steps might be taken. Preaching to converted? In its letter, the Copyright Assembly is likely preaching to the converted. The U.S. Trade Representative has already flagged Canada for special attention arising from proposed retransmission legislation as well as several other areas where the American government believes Canada needs to overhaul its copyright and intellectual property laws. The 2001 "Special 301" annual review was published early this month by Zoellick’s office. The report examines the effectiveness of intellectual property laws in approximately 72 countries and puts Canada on the "Watch List", a group of countries held up to scrutiny by the U.S. government, though not as important as another group of "Priority Watch List" nations. Still, Canada has been grouped with Uzbekistan, Thailand, and Vietnam on the list. The report puts Canada on the Watch List despite what the U.S. views as encouraging moves by the Canadian government to tighten up its copyright regime. "Canada has made some progress in improving its regime over the past year, including amending its patent law to provide at least a 20-year term of protection for patents filed before October 1, 1989. However, the problems that originally caused Canada to be place on the Watch List remain largely unresolved," the report states. Inadequate protection for IP "For example, Canada does not provide adequate data protection in the pharmaceutical area, and systematic inadequacies in Canadian administrative and judicial procedures allow early and often infringing entry of generic versions of patented medicines into the marketplace. Moreover, progress has stalled on resolving the outstanding issue of national treatment of U.S. artists in the distribution of proceeds from Canada’s private copying levy and its ‘neighbouring rights’ regime. "The United States is also concerned about Canada’s lax, and potentially deteriorating, border measures that appear to be non-compliant with TRIPS requirements. Finally, the U.S. Government remains concerned about the potential use of compulsory licenses for Internet retransmission of broadcast signals." Speaking on condition of anonymity, an official with the U.S. State Department familiar with Canadian trade issues tells CNM that the American government does see progress in the various issues and that too much shouldn’t be read into inclusion on the list. " has been there for a while, so it probably doesn’t mean a whole lot. It’s just that it’s being grouped with a group of countries that are affecting U.S. business and, in fact, since Canadians invest in U.S. business, it’s affecting Canadian investors and Canadian consumers as well. It merely shows that we believe that you could be running things in ways that could be more productive for your own economy. You are not, by any stretch of the imagination, near the top of the list of the folks that we complain about, but you are on the list." Efforts encouraging He says, for example, that the U.S. is pleased with new 20-year protection for patents, though the process took longer than the Americans would have liked. The official notes that staff at the U.S. embassy meet with officials from Industry Canada and the Department of Foreign Affairs and International Trade on a regular basis to discuss these and other issues. He also notes that an upcoming review of Canadian copyright law mandated by section 92 of the Copyright Act will likely be a good opportunity to review the neighbouring rights issue surrounding this country’s private copying levy. Currently, artists must be citizens of either countries that have signed the Rome convention or whose music was published by a Canadian company to receive a portion of levies collected under the regime. While U.S. artists aren’t technically qualified to share in the proceeds, recent moves in that country to provide neighbouring rights on webcasts could be construed as a reciprocal right for this country. Officials at Industry Canada did not return phone calls seeking confirmation that Canada is considering including U.S. artists and publishers in the regime to satisfy U.S. concerns.

U.S. gov’t, industry pressure Canadians to overhaul copyright protection regime

Broadcast | May 16, 2002

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