Government’s proposed amendments to Radiocomm Act deficient, lawyer says

A lawyer active in fighting television signal piracy warns that changes the government is proposing to the Radiocommunication Act don’t go far enough, and ignore the huge leaps in technology available to those engaged in the trade. While encouraged that the government has finally indicated a willingness to amend the statute, Bill McKenzie, a senior partner with Crawford, McKenzie, McLean, Wilford, Anderson & Duncan LLP, cites a number of problems with the direction the government is taking. "I’m concerned that if they pass (Bill C-52) the way it is now, it’s going to cause nothing but grief for the next 10 years because you only get the chance to change legislation every 10 years or so," he tells Canadian Communications Reports. "All the rah-rah people are saying they are going to fix the legislation. But let’s not do it with a Band-Aid. Let’s use Crazy Glue." He points out that Bill C-52, an Act to amend the Radiocommunication Act, isn’t proactive enough and creates loopholes by being technology-specific. "The pirates are operating in the future, while the amendments, even if they tighten up loopholes, operate in the past. "Software would be a word I’d use. I mean the pirates can now run without devices, and the statute refers to devices," McKenzie notes. "It used to be that you controlled the bottle when you were importing the wine, but now you have to control the wine. Because they aren’t importing it in bottles anymore. You can now program a computer to do these things, and you don’t need an like before." He is calling for the Act, particularly section 19 (1) (b), to be revised to incorporate software, rather than simply referring to devices. "They need to add an analogous section for software. These days there are emulators which run on a PC. The software can be distributed over the Internet," he notes. Bill C-52 recommends changing section 4 of the current Act to read, "…no person shall import any radio apparatus or other device designed to be used in the decoding of an encrypted subscription programming signal or encrypted network feed unless they do so in accordance with an import certificate." One way that the government hopes to crack down on TV signal piracy is to allow only those companies with import permits to bring satellite TV equipment into the country. Bill C-52 includes two other measures aimed at clamping down on TV signal piracy - increased fines and longer jail terms upon conviction as well as clauses allowing for the payment of statutory damages to plaintiffs. Industry Canada minister Allan Rock and Canadian Heritage minister Sheila Copps tabled the bill in the House of Commons on October 22. So far, it has only passed first reading. Harris Boyd, senior VP of Industry Affairs and Office of Small Systems at the Canadian Cable Television Association (CCTA), says that the proposed import certificate is aimed at fixing current problems with the enforcement of the section of the Act that makes it unlawful to bring illegal satellite equipment into the country. "If you’re a customs officer standing at the border that’s all well and good, but what equipment are you looking for? It has been very difficult for them to exercise their authority. When they have stopped goods, they can hold them for 24 hours and if the RCMP doesn’t have the resources to go and inspect them and determine what they are, then they are released and duties charged," Boyd tells CCR. "So import permits are a very good tool because it would flip the issue around. Instead of customs officers trying to determine what’s illegal, they would know who has the right to bring such equipment in." But McKenzie states that new technologies are rendering many of the piracy devices obsolete, and that the proposed section 4 misses TV signal pirates who manufacture devices in Canada. "If someone has to have a certificate to import them, then to bypass the requirement they can import the components and assemble them here. Presto, no certificate needed," he points out. Boyd says that Canada is becoming a haven for the production of a lot of the decoding equipment, the card simulators and the cards themselves. He also laments the fact that Bill C-52 doesn’t touch on the issue of the export of such equipment. Bill C-52 proposes upping the maximum penalty from the current $25,000 for business to $200,000 for some offences and $500,000 for others, and increasing the maximum jail time from one year to two years as well as statutory damages of up to $100,000. Boyd states, "The increased penalties will send a strong message to the judiciary that the government thinks this is a serious offence." But McKenzie believes that the proposed maximums are still too low. "The increase in fines is welcome but it is unclear whether this is per occurrence, per day, or per device, so hopefully that will be clarified," he says. "In a commercial venture, why is the maximum of elected damages $100,000?" he asks. "What if the pirate is found with 25,000 decoding units. Shouldn’t the plaintiff be able to elect the statutory damage number to be calculated on a per unit basis, e.g. $3,000 per unit, which would make the damages $75,000,000, which is more realistic." McKenzie calls for penalties to be even higher if an illegal dish is used commercially, in a sports bar, for example. He also wants law enforcement agents to have the power to freeze proceeds from the trade in illegal TV signals, and recommends that probation be incorporated in the amendments. "Let’s say the police walk in the door and there are 100 decoders and there’s a million in cash (from the business). The police have to leave the cash because they have no power to grab it," he notes. Probation, McKenzie explains, would mean that a dish dealer could be prosecuted for being in contempt of court and charged under the criminal code on second offence, resulting in a criminal record. Probation allows a judge to prohibit a convicted dealer from re-entering the business. If caught again, the defendant could be charged not only for being in breach of the Radiocommunication Act but also for being in contempt of court. "It ups the ante. Right now, because there is no criminal record (under the Radiocommunication Act) and defendants can just pay a fine, it’s like a cost of doing business," he notes. Boyd says that the CCTA would have also liked to see TV signal theft be made a hybrid offence, rather than just a summary conviction. That would mean that TV piracy would result in a criminal record. "But the government decided - and these are their proposals, not ours - so they decided not to proceed with that at this point in time because they perceived it as being a much more fundamental change of the law," he says. "We’re not really changing the law substantially in this case." Nonetheless, Boyd praises the government action. "The problem (of TV signal piracy) is so serious and costs so much every year that we’re quite happy with these proposed amendments to give both ourselves, the private sector and law enforcement agencies new tools and we need them badly," he states.

Government’s proposed amendments to Radiocomm Act deficient, lawyer says

Broadcast | October 31, 2003

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