CWTA raises copyright concerns in consultation on mobile broadcasting

The Canadian Wireless Tele-communications Association (CWTA) has red-flagged a provision in the proposed CRTC exemption order for mobile broadcasters. The wireless industry lobby group questions the commission’s rationale in proposing a "signal retransmission consent requirement" for over-the-air broadcasters. Below is an edited excerpt of the CWTA’s comments to Broadcasting Public Notice 2006-48. While the commission proposes in the exemption order to respond to Canadian Motion Picture Distributors Association’s (CMPDA) 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. Under the provisions of s. 31 of the Copyright Act, retransmitters of over-the-air (OTA) broadcasting signals may retransmit the programming in local signals without incurring liability, but must pay royalties under a Copyright Board-approved tariff for the right to retransmit the programming in signals imported from distant markets. A retransmitter is broadly defined in s. 31(1) to mean "a person who performs a function comparable to that of a cable retransmission system, but does not include a new media retransmitter". A new media retransmitter is a retransmitter operating pursuant to the commission’s New Media Exemption Order. Traditional wireline broadcasting distribution undertakings (BDUs) are thus retransmitters, as are DTH providers as well as MDS providers, including Look Communications. Similarly, mobile television broadcasting undertakings operating pursuant to the proposed exemption order rather than pursuant to the New Media Exemption Order will, to the extent they retransmit OTA signals, qualify as retransmitters for the purposes of the Copyright Act’s retransmission regime. 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 BPN, 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 s. 31 of the 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. As described in the preceding section, by including in the proposed exemption order a requirement that mobile broadcasting undertakings obtain the prior consent of an OTA broadcaster for the retransmission of its signal, the commission is proposing a different obligation than what CMPDA and most others who commented on this issue in fact sought in this proceeding. More importantly, and of more concern, 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. While s. 21 of the Copyright Act grants broadcasters very limited rights in their signals, s. 21(1)(c) was purposely drafted so as to clarify that such rights do not apply to retransmission, including wireless retransmission. Specifically, while s. 21(1)(c) grants a broadcaster the right to authorize another broadcaster to retransmit its signal. Thus the limited right in s. 21(1)(c) applies only with respect to the retransmission of an OTA broadcaster’s signal by another OTA broadcaster, not by a wireline or wireless retransmitter. Accordingly, 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. Even if the commission is not satisfied with the above copyright-based arguments against its retransmission consent proposal, CWTA submits that it is premature to introduce such a new and controversial obligation into the Canadian broadcasting system.

CWTA raises copyright concerns in consultation on mobile broadcasting

News | June 29, 2006

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