Telus to propose communication right amendment at C-32 copyright committee

OTTAWA—Telus Corp. plans to propose amendments at the legislative committee on Bill C-32 so that the bill’s new “making available right” for the digital communication of works does not add to the “layering of rights” on digital music. Copyright reform Bill C-32 includes a making available right so that rights owners will have the exclusive right to distribute works on digital networks. Telus sells digital music tracks through an online music shop, and the company says it is concerned the new making available right will contribute to the “layers” of royalties already on music. “It was intended as a shield and not as a sword,” Craig McTaggart, Telus’ director of broadband policy, said in an interview following a panel discussion Wednesday about copyright. “It was intended as a way to protect rights but not as a way to create a new compensable right that rights holders can go after people with.” McTaggart appeared on the panel Wednesday at the Telecommunications Forum in Ottawa hosted by Insight Information. He said Telus will be raising the issue at the legislative committee hearings—which could begin as early as next week—but said he is not ready to discuss the details of a proposed amendment. “There’s a problem with the layering on of rights, where it’s gotten to the point where there are more royalties to be paid than margins to pay them with,” McTaggart said. “Our view is that the downloading of a file is not a copyright event.” But the courts have said otherwise. Telus and other digital music distributors like Apple Inc., which operates the iTunes music store, now effectively pay for the digital distribution of music due to Copyright Board rulings and subsequent decisions from the Federal Court of Appeal. In a 2008 Federal Court of Appeal decision known as the tariff 24 “ringtones case,” the court ruled that the transmission of music or performances online constitute a communication to the public. The decision upheld an earlier Copyright Board ruling and confirmed the right of collective societies like SOCAN to collect licence fees for the wireless communication of ringtones. This year, the Federal Court of Appeal also ruled the download of a music file from an online music service is a communication of the sound recording to the public under the Copyright Act. That decision is being appealed to the Supreme Court (the court has not yet said whether it will hear it). As a result of these decisions, digital music services now pay for communication, performance and reproduction rights, and Telus argues that codifying the law with a making available right has the potential to create a new copyright collective to administer it. Telus has previously argued the value of the reproduction right and communication right should be determined together, not separately. “However, TELUS contends that Parliament should make clear that the downloading of music from an online music store is not subject to the communication right at all, a legal issue that has been the subject of litigation since 2006,” McTaggart wrote in a follow-up email to The Wire Report. It’s not clear precisely what amendment Telus will propose to the bill. Bill C-32 implements the Internet treaties of the World Intellectual Property Organization (WIPO), and rights holder groups argue the treaty language requires a full making available right. But there remains some uncertainty about whether the WIPO treaties demand a full making available right. In the United States, a jurisdiction that is compliant with the WIPO Internet treaties, the U.S. Court of Appeals for the Second Circuit ruled this year, in the ASCAP v. RealNetworks case, that the download of a song is not a public performance. “The decision highlights a significant difference between US and Canadian law on whether copyright owners of the performance rights in musical works are entitled to royalties when a copy of a music file is transmitted over a network,” Barry Sookman, a copyright lawyer and partner with McCarthy Tétrault, noted on his blog in September. SOCAN was not available for comment Thursday, but in a previous release the organization has said the rights won through the court decisions provide an important support mechanism for its songwriters and music publishers. The House of Commons is poised to create a new legislative committee on Bill C-32 as lobby groups are preparing their messages and proposed tweaks to the legislation. The committee will have 12 members including the chair. The House of Standing Committee on Procedure and House Affairs will report the committee membership to the House on or before Nov. 18. House Speaker Peter Milliken will make his selection for chair of the committee after the members are reported to the House. The Wire Report obtained a list of potential committee chairs under consideration by the Speaker. Those candidates are: Conservative MPs Mike Allen, Peter Braid, Gordon Brown, Dave Van Kesteren, Mike Wallace, Andrew Scheer, Barry Devoin, and Lois Brown; Liberal MPs Keith Martin, Maria Minna, and Bernard Patry; and NDP MPs Irene Mathyssen and Denise Savoie. The NDP will have one spot on the committee, which MP Charlie Angus is expected to fill. The Bloc Québécois will have two members, who are expected to be Carole Lavallée and Serge Cardin or Robert Bouchard. The Liberals will have three members on the committee, including Liberal MPs Pablo Rodriguez and Marc Garneau. The third member remains uncertain—but sources suggest Bonnie Crombie or Scott Simms are likely candidates. The Conservatives’ Dean Del Mastro, the parliamentary secretary to the heritage minister, and Mike Lake, the parliamentary secretary to the minister of industry, are also expected to sit on the committee. Another three Tory members will have seats at the table—but it’s unclear whom. Industry insiders say the Conservative government wants to finish with the committee study of the bill before the Christmas break. Sources say that means the committee will have to manage its time to work efficiently and may need to limit the number of witnesses. sdoyle@thewirereport.ca --- CORRECTION: An earlier version of this story said the committee will have a total of four Conservative members, but the committee will have five, excluding the chair.

Telus to propose communication right amendment at C-32 copyright committee

News | 11/11/2010 10:29 pm EST

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