New exemption order must consider current rebroadcast rules: CWTA

David Farnes, VP of industry and regulatory affairs at the Canadian Wireless Telecommunications Association, recently responded to the CRTC’s call for a new proposed exemption order for mobile wireless television services. In his submission, excerpted below, he says that by exempting the MobiTV-based services of the major wireless carriers under the 1999 New Media Exemption Order, the CRTC opened the door for a number of challenges to how it regulates all wireless video services. In Broadcasting Public Notice CRTC 2006-47, the commission noted…that "expressed concern about potential use by mobile broadcasters of broadcast signals without permission"….Contrary to the statement in paragraph 49 of BPN 2006-47, parties had not "expressed concern about potential use by mobile broadcasters of broadcast signals without permission", nor did CMPDA submit that "mobile TV providers should be required to obtain the consent of a terrestrial broadcaster for the retransmission of its signal." In that same notice, there is similar inaccuracy at paragraph 50, where it is stated that "the wireless carriers appear to be negotiating with broadcasters for the rights to retransmit their signals and have committed to do so". The commission then relies on these statements as grounds for the second criterion of its proposed exemption order, namely: "The undertaking has obtained the prior consent of a broadcaster for the retransmission of its signal." CWTA opposes inclusion of this proposed criterion because, as described below, it is based on misinterpretations, it is unnecessary, and we believe it would amount to the commission acting beyond its jurisdiction to re-write existing copyright laws and establish a new copyright right not provided for in the Copyright Act. While the commission proposes in the exemption order to respond to CMPDA’s apparent concerns by granting broadcasters the right to consent to the retransmission of their signals by mobile TV broadcasting undertakings (signal retransmission consent), what CMPDA actually sought was for the commission to grant a right to the owners of the programming in the signal to consent to the retransmission of such programming (program retransmission consent). There is a clear distinction both in fact and law between the retransmission of a broadcaster’s signal and the retransmission of the programming in the signal. Section 31 of the Copyright Act establishes a regime of rights and obligations with respect to the retransmission of the programming in a broadcaster’s signal; however, no similar rights or obligations exist with respect to the signal itself. …Given that the mobile television broadcasting services described in BPN 2006-47 and operated by Bell Mobility Inc., TELUS Mobility and Rogers Wireless Inc. are, pursuant to that notice, subject to the New Media Exemption Order, they are excluded from the Copyright Act’s retransmission regime and thus must obtain the consent of program suppliers to retransmit their programs when contained in OTA signals. This fact, however, does not in any way justify the commission creating a similar exclusion for undertakings not subject to the New Media Exemption Order simply because they also offer mobile broadcasting services. The legal distinction is between retransmitters that operate pursuant to the New Media Exemption Order and those that do not. The mobile broadcasting undertakings contemplated in the notice, which will operate pursuant to the new proposed exemption order rather than pursuant to the New Media Exemption Order, will be subject to the Copyright Act’s retransmission regime and rights holders will have their retransmission rights protected accordingly. The commission does not have the power or jurisdiction to re-write Canadian copyright law, which is what it would be doing if it were to incorporate in the proposed mobile broadcasting exemption order the program retransmission consent obligation that CMPDA actually sought. If the commission’s concern is that rights holders may not be compensated for the retransmission of their programs by mobile broadcasting undertakings operating pursuant to the new proposed exemption order, the solution is to clarify that such undertakings are not subject to the New Media Exemption Order, and thus are included in the s. 31 retransmission regime. The solution is not for the commission to try to establish a new rights regime by imposing on mobile broadcasting undertakings a unique program retransmission consent obligation which is not borne by any other retransmitter whose services are not delivered and accessed over the Internet. ...The commission’s proposed signal retransmission consent requirement would amount to the creation of an entirely new and very controversial copyright right for OTA broadcasters - a right that Canada has specifically rejected with respect to Canadian OTA signals, and which, with respect to foreign OTA signals, is currently the subject of intense examination and heated debate at the international level. Accordingly, the commission should adopt neither the CMPDA program retransmission consent proposal nor the signal retransmission consent criterion it actually included in the proposed exemption order. CWTA notes that the carriers’ prior submissions with respect to negotiations with broadcasters have been mischaracterized at paragraph 50 of BPN 2006-49. The wireless carriers had not been "negotiating with broadcasters for the rights to retransmit their signals", nor have they "committed to do so", for the following reasons: As CWTA stated in its reply comments of September 27, 2005, the carriers at that point had been focusing their attention on transmitting programming carried by specialty services, for which the carriers could and must negotiate and secure the transmission rights. No negotiations with OTA broadcasters to retransmit their signals had taken place nor had they been contemplated; the OTA broadcasters cannot negotiate signal retransmission rights with the mobile carriers – or with any other retransmitters for that matter – because they have no such rights to negotiate: no such rights exist. ...Canada’s copyright law does not grant Canadian OTA broadcasters the right to authorize the retransmission of their broadcast signals by mobile TV undertakings or any other licensed or exempt retransmitter. Similarly, no such right is granted to foreign (e.g. US) OTA broadcasters, which would also appear to be covered by the commission’s proposed signal retransmission consent criterion. The question of whether a brand new retransmission right should be established for foreign broadcasters’ signals is the subject of lengthy and on-going deliberations at the World Intellectual Property Organization (WIPO). WIPO is currently considering a proposed Treaty on the Protection of Broadcasting Organizations which, as presently drafted, would contain such a right. Support for the proposed treaty amongst WIPO members, however, is much divided. Most importantly, the Canadian government is opposed to such a right applying within Canada and, for this reason, reiterated at the recent WIPO meetings in Geneva its official position that parties to the proposed treaty, should it ultimately be adopted, should be given the option of opting out of the retransmission right provisions. Accordingly, should the commission maintain the proposed signal retransmission consent requirement in the mobile broadcasting exemption, it would be acting against the Canadian government’s official position on the matter with respect to foreign broadcasters’ signals.

New exemption order must consider current rebroadcast rules: CWTA

Broadcast | June 26, 2006

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