will scrutinize

Copyright Act

The crtc information highway hearings are five weeks away, 658 intervenors are enlisted to date, and issues surrounding the Broadcasting, Telecommunications and Copyright Acts are on the table for debate.

The crtc has asked all concerned to respond to matters of redefining broadcasting, telecommunications, Canadian content and the role of the regulatory body for new services.

In addition to intervening papers submitted by the Canadian Film and Television Production Association, Atlantis Communications, the Canadian Association of Film Distributors and Exporters, the Directors Guild of Canada and actra, among others, the crtc will be addressing a report on copyright produced by a federal government subcommittee headed by Montreal-based copyright lawyer Claude Brunet.

Key to the draft copy of the report, now in distribution, are suggested amendments to the three Acts which govern the airwaves and protect intellectual properties.

Accelerated action is suggested for implementing the long-awaited phase two of the Copyright Act, yet the focus of the report is not on phase two but on copyright in the age of digital technologies.

Overall, the subcommittee concluded the Copyright Act provides sufficient protection for new and existing works, including multimedia works, which are created or distributed in a digital medium.

A sui generis resolution – whereby a separate statute to embody copyright for multimedia works would be implemented – is not recommended. Everything properly fits within the Act as it exists now, says the report, specifically within the definition of ‘work of compilation.’

Kevin Shea, coo of Atlantis, says Atlantis is in favor of a sui generis right. ‘Fundamentally, (Canadian) Heritage and the crtc have to get together a copyright act that covers current and emerging technologies. They must get that done now because it is very much tied to any decision they make with respect to the licensing of new technologies.’

Shea says the situation, as it stands, is ‘containable,’ largely due to the dominance of cable in broadcasting, which is highly regulated. ‘But,’ he argues, ‘if there’s a whole bunch of new technologies on the horizon and not the appropriate laws to protect us, we are not going to forge into the future with the right kind of horsepower to protect ourselves as a nation. And you can’t do one without the other.’

Copyright, says the cftpa in its intervening paper, is a necessary component to a larger policy needed to ensure the survival of Canadian programming in the new-media environment.

Effective mechanisms to enforce copyright measures are required, and the cftpa questions whether such measures – appropriate protection, enforceable contracts, tracking and billing processes – are in place to ensure that product and service providers get their due compensation.

The copyright subcommittee recommends the Copyright Act be amended to ensure material delivered via telecommunication, including on-demand, is subject to authorization by the copyright owner. Further, it suggests a Parliamentary standing committee be established to review and revise the Copyright Act on a continued basis to keep up with new technologies.

With an encoded identifier system to track transactions in place, a system involving collective management and copyright tribunals could be adapted for overseeing i-way transmission, says the cftpa.

Broadcasting and telecommunications regulation, amendment and enforcement of copyright law, and the creation of programs to stimulate supply, are all key issues, says the cftpa.

‘In our opinion, delivery systems are not the problem Canada will have in securing itself a niche in new media,’ contends the association. ‘We as a country have always spent whatever was required on pipelines, and it looks as though we’re about to do it again. The misfortune is that if we do not pay equivalent attention to what those pipelines carry, they will end up once again carrying overwhelmingly foreign material.’

In its intervening paper, Atlantis advocates amendments to the Broadcasting and Telecommunications Acts that include an increase in Canadian ownership and control of broadcasting and distribution to 67%, and a requirement that the Acts govern all distribution undertakings including direct-to-home and telephone companies.

cafde, Atlantis, the dgc and the cftpa all vouch for a widening of the terms of the Broadcasting Act to include new material and new carriers. At the center of the discussion is the issue of Canadian content regulation.

The cftpa maintains that in an environment of increasingly fragmented audiences, where big American marketing campaigns traditionally dominate the field, financing difficulties stand to increase exponentially and the need to support Canadian programming is even greater. Although opportunities for niche programming may increase, the association maintains ‘high-end material will need continued – perhaps increased – support.’

In support of Canadian programming, Atlantis would like to see all distribution operations contribute to Canadian production ‘much like the new Cable Production Fund.’

Although the cftpa argues for inclusion of ‘as much of the content area within the purview of the Broadcasting Act as possible,’ it also warns of conflicts with nafta. Because telecommunications is included within the agreement, there is restricted regulatory flexibility for the services.

Whether new technologies prohibit regulation as the crtc knows it is another hotly contested issue. For actra, it is a priority: ‘(W)e must first dispense with a certain generalizationÉthe misconception which suggests that the very act of converging technologies renders regulation impossible.’ actra maintains wherever a transaction goes, regulation should follow.

Michael McCabe, president of the Canadian Association of Broadcaster disagrees, saying Cancon measures will not operate effectively with new distribution systems in place.

‘None of that’s really going to work in a world where there’s enormous choice. A major new program initiative is necessary to allow Canadian programming a place on the i-way,’ he says.

Is the autobahn beyond the realm of regulation? Shea says no. ‘I don’t buy that. In fairness, it’s not what the purveyors of tomorrow’s technologies are saying either. They say we’ll live by the approved list of channels, and to the extent that they can do program substitution, they will do it.’

McCabe calls for an update on simultaneous substitution rules. ‘It worked in the ’70s, but now too much programming is coming in that we have the rights to, but we’re not in a position to defend our rights. We’re proposing some form of Syndex (Syndicated Exclusivity) in the u.s. If you are a broadcaster in the u.s. and you own the rights to a program, then if the cable company in your area brings it in on some other channel, you can ask to put a slide over it or replace it with another program.

The subcommittee on Copyright and the Information Highway says there is no need to introduce any new rights for the emerging technologies, and that includes implementing a new distribution right in the Copyright Act.

The cftpa disagrees: ‘In the evolving context of transborder communications, it is more important than ever that Canada be established as a separate market for distribution rights.’ The possibility that broadcasting should fall into the same category as theatrical distribution, thereby leaving Canada as part of North America, could mean ‘the virtual eradication of a Canadian presence on Canadian screens,’ the 300-member association says.

At a recent luncheon, Michael MacMillan, Atlantis ceo, placed none too fine a point on the significance of the hearings: ‘(T)he crtc must enforce Canadian copyright laws and at the same time Canadian cultural sovereignty by permitting only satellite services that are licensed in Canada, that originate in Canada and that contain channels on the crtc designated list. If the Ministries of Industry and Heritage or the crtc fail to take these steps to enforce our copyright laws (and the Canadian distinct market), you can expect Atlantis and others to enforce our rights in court. We expect any such action will be unnecessary.’

The crtc information highway hearings will take place in Hull, Que. March 6-31.