CAB reiterates concerns over copyright reform to Industry and Heritage

On the eve of Parliament’s return to its usual business, the Canadian Association of Broadcasters (CAB) has reiterated its concerns over the copyright reform process to the responsible ministers. In an August 16 letter to Canadian Heritage minister Liza Frulla, and her counterpart at Industry Canada, David Emerson, the CAB outlines several areas that it feels will be important to deal with in the short term that are not currently on the table as part of the government’s reform agenda, and warns against hasty action on several key points of the process. The three-page letter asks the ministers to clarify a proposed right of making available, which it says could go beyond the minimum required to comply with the World Intellectual Property Organization’s (WIPO) Performances and Phonograms Treaty. In the missive, the CAB writes: "…With the arrival in Canada of legitimate music download services, there is a requirement to clarify, in legislation, the scope of the rights being utilized. The ‘making available’ right proposed to be granted for sound recordings and performers needs to be clearly distinguished from the communication right so that the ability of broadcasters to use streaming technology is not hindered." CAB VP of regulatory affairs Erica Redler says the association is neither supportive nor does it object to the proposed right of making available, which would give performers and record companies new powers to authorize the use of their music online. Currently, those groups have only neighbouring rights in the use of their works, and they have been demanding an exclusive right to help combat the giant issue of music piracy (CNM, Nov. 2/01). But, says Redler, while the proposed right could be of little concern to broadcasters, it could end up creating new rights for which broadcasters would have to pay if legislation isn’t carefully considered. "Depending on how the WIPO treaties are implemented, broadcasters may not have an interest in it. This making available right, primae facie, we don’t object to giving new rights to cover new uses. Our concern is that it’s not implemented in a way that’s overly broad and ends up creating overlapping obligations for our members in respect of their activities…Our role here is to ensure that the way to implement it doesn’t have a negative impact on broadcasters’ business." The CAB laundry list also includes calls to go beyond the official agenda for copyright reform by dealing now with a provision to exclude broadcasters from the provisions of the Copyright Act dealing with ephemeral recordings. Currently, radio stations that transfer music electronically from CDs to electronic jukeboxes that automate the studios pay for the right to make that copy, a situation the CAB has long argued is absurd. "It’s a good question as to whether it’s a dead horse that we keep on beating, but the issue of ephemeral transfer media remains a huge priority for our members. You go out and ask them, and they don’t really care about WIPO treaty ratification. They care about this right as it currently exists with respect to our analog radio, and the absurdities that could come to pass in the digital world if every technical copy attracts a royalty payment. So, that’s our issue. That’s something that touches us. A making available is kind of like - well, be careful." The CAB also asks the ministers responsible for copyright legislation to build into this round of reforms a provision to ensure broadcasters are not subject to the private copying levy in advance of a Federal Court of Canada decision on the regime as a whole. While the CAB’s requests would throw the government’s proposed timetable out of synch, Redler plays down the consequences of a possible delay. "We’ve never bought into the phasing that was in the (copyright reform) report. That was the recommendation. And, have we ever agreed that their priorities were the ones that we thought were appropriate? No, and we’ve made that very clear in a number of submissions that we felt, yeah, there’s WIPO treaty ratification, but there’s a lot of other issues out there." In the letter, the CAB writes, "Given that successive governments have underestimated the time required to prepare copyright legislation, and to get it through Parliament, the CAB proposed that several non-WIPO treaty implementation issues be dealt with as well." Time, however, may be running out for the CAB to put its issues on the table. Asked whether the department of Canadian Heritage is prepared to meet the agenda set out by the Standing Committee on Canadian Heritage last spring, which calls for an early introduction of reform legislation this fall, point man Bruce Stockfish tells CNM, "I can tell you that the agenda that we set out in our status report before the Heritage committee in the spring stands, which is to say that we’re aiming to go to Cabinet in the fall, which I suppose at this point means October or probably November, in order to get authorization to get on with tabling a bill… "Realistically, I think that means sometime in the new year, probably the spring - next spring. So, that’s what we’re aiming for." Stockfish says a memorandum to Cabinet can hopefully be submitted "in the next few weeks," and says interpretive differences between Heritage and Industry are "getting closer."

CAB reiterates concerns over copyright reform to Industry and Heritage

Broadcast | September 8, 2004

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