RE: [Cdn-DMCA] Compulsory retransmission license going away?

From: Jeff Leiper <jleiper _-at-_ decima.ca>
To: "'No DMCA in Canada'" <canada-dmca-opponents (at) flora.org>
Date: Tue, 30 Oct 2001 10:13:33 -0500

Matthew, thanks for dropping it my way. I went to my readers with a special
update yesterday afternoon. We've been following the issue in-depth since
last August when we broke the Jump story on a tip.

Actually, this is as good as legislative changes. I asked Tobin back in
February about this, and he said the same thing back then. The story hasn't
changed, no matter what department officials are telling the industry.

Between you and I, there are several ways the departments might choose to
amend the legislation, and I'm betting on a new Schedule 6 as drafted by the
Media Content Coalition last November will be the winner -- though I may be
wrong. To believe, as the Globe reported this morning, that they'll
introduce copyright fees for Internet re-transmitters and allow them to
operate is to ascribe to them a degree of Orwellianism that even I'm
unwilling to entertain. I don't believe that the departments will try to
entrench s.31 protection for Internet players under the guise of closing
said protections. There will be an Internet carve-out, and it will be in
effect by January 31. My colleague's questions to the ministers yesterday
afternoon were clear, as were their answers.

Enclosed is my update sent out yesterday -- the same one Michael received.
You'll not some similarities in the articles. Our coverage has tended to
drive the mainstream press....

Government to close section 31 loophole

Section 31 of the Copyright Act will be closed to Internet services in the
coming weeks, according to comments by both Industry Canada minister Brian
Tobin and Canadian Heritage minister Sheila Copps. At the Canadian
Association of Broadcasters convention in Ottawa this morning, the pair
indicated that they are hoping to introduce amendments to the Act that would
effectively remove the section's protection for retransmission from online
companies such as JumpTV.com Canada Inc. and ICraveTV Inc. 

In a speech to delegates, Copps said: "And section 31, which provides a
loophole for Internet providers to steal your product, must be closed. They
must understand that we are talking about intellectual property, which is as
important in the broadcasting industry as in any other area, and we cannot
allow a loophole to permit pirates to steal your product. I want to signal
to you today that along with my colleague, Mr. Tobin, who indicated to you
this morning, we will be seeking immediate Cabinet approval to introduce
amendments to this section of the act as quickly as possible."
For his part, Tobin told reporters following a speech that there would be a
"legislative response" on the table within weeks. "It's a question of
getting time on the agenda and completing the analysis of the kind of
legislative package that ought to be brought forward. That is something that
both Sheila Copps, as minister of Heritage, and I, as minister of Industry,
are committed to seeing happen as quickly as possible."

The move will come barely a week after replies were due on a first round of
submissions to a consultation paper issued last June (CNM, June 28/01), and
a review process unofficially launched last May (CNM, May 31/01). It's
likely many in industry will question the legitimacy of that process given
the speed at which the departments have moved. Since last February's
Canadian Film and Television Production Association annual meeting at which
Tobin told Canadian NEW MEDIA he favoured an exclusion for Internet
companies to the section (CNM, Feb. 21/01), it may have been a foregone
conclusion that there would be some kind of Internet carve-out as advocated
by the country's broadcast industry.

There are no details available at this time on how the proposed legislation
will be drafted, but it will likely resemble amendments advocated by the
broadcasters and content producers last November under the Media Content
Coalition umbrella (CNM, Nov. 1/00). At the time, the group urged the
Governor in Council to amend Section 31 with a new schedule 6 reading:

(1) Section 31 does not apply in relation to a communication to the public
by telecommunication of any literary, dramatic, musical or artistic work if
the communication takes place, in whole or in part, by means of the
Internet.
(2) In the event that a retransmitter becomes aware that an authorized user
of its service is transmitting or has retransmitted by means of the Internet
a local or distant signal provided as part of the re-transmitter's service,
the retransmitter shall immediately discontinue its service to such user.

Copps told reporters she's hoping to have any legislation introduced in the
House before Christmas, and "with speedy support from colleagues it should
not be a great amount of time." She added, "this will be a short-term
amendment to close that loophole, precisely because even though the JumpTV
situation has been resolved, there is nothing preventing another pirate from
basically trying to use the airwaves through the Internet and basically try
to use the Internet to make money from somebody else's creative property."

Presented with transcripts of Copps' comments, Jump president Farrel Miller
was quick to lambaste the minister. "If these comments are true, then she
would indicate her total ignorance to the situation at hand," he told Decima
Publishing. "For her to refer to what we've suggested as 'stealing', and not
paying, is abhorrently ignorant. JumpTV has always gone on the record -
going back 15 months ago - that we're going to pay a tariff just like the
satellite operators and the cable operators pay a tariff. For her to
characterize what we've talked about doing as 'stealing' is really
slanderous to what we've always said."

The Canadian Cable Television Association (CCTA) was also quick to respond
to the ministers' comments, telling Decima Publishing that: "The CCTA
believes that the minister's comments reflect the objectives of the
consultation process that has been underway since the beginning of summer.
Clearly the government has indicated its desire to amend section 31 of the
Act to make the scope of the Act more certain. The comments filed by the
CCTA and other parties as part of the consultation process will assist the
government in developing a legislative response that will prohibit the
infringing uses referred to by minister Copps, but that will continue to
allow legitimate uses of retransmitted signals by cable operators and other
BDUs." The CCTA has consistently opposed a technology-specific carve-out to
the section.
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