ARCHIVED — A Bell Canada et al.

COPYRIGHT REFORM PROCESS

REPY COMMENTS

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Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

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Reply comment from Bell Canada et al. received on October 22, 2001 via e-mail

Subject: Copyright Submissions from Bell Canada

22 October 2001

Comments – Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
Industry Canada
235 Queen Street
5th Floor West
Ottawa, Ontario
K1A 0H5

The following companies - Aliant Inc., Bell Canada, Bell ExpressVu LP, Bell Globemedia Inc., Bell Mobility Inc., Northwestel Inc., Télébec ltée and Telesat Canada - are pleased to reply to the first round comments of certain interested parties originally submitted in response to the two consultation papers issued jointly by Industry Canada and the Department of Canadian Heritage on 22 June 2001: Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet, and Consultation Paper on Digital Copyright Issues.

The Companies agree that their reply comments will be publicly available via the Departments’ Web sites.

Sincerely,

Sheridan Scott Chief Regulatory Officer Bell Canada

PDF version of the letter
PDF version of comments on Consultation Paper on Digital Copyright Issues
PDF version of comments on Consultation Paper on the Application of the Copyright Act's Compulsory Retrnamission Licence to the Internet


1. INTRODUCTION

1. Pursuant to the call for comments in the Consultation Paper on Digital Copyright Issues, jointly issued on 22 June 2001 by Industry Canada and the Department of Canadian Heritage (“the Departments”), Bell Canada (including Bell Sympatico Internet service provider) and Bell Globemedia Inc. (including CTV Inc. and Sympatico-Lycos Inc.) submit the following reply comments on behalf of and with the concurrence of the following companies: Aliant Inc., Bell ExpressVu LP, Bell Mobility Inc., Northwestel Inc., Télébec ltée. and Telesat Canada (collectively, “the Companies").

2. Having reviewed the first round comments submitted to the Departments, the Companies do not wish to amend or vary the positions set out in their submission of 15 September 2001. The Companies do not intend to comment on each submission made by other parties. However, silence with respect to such submissions should not be construed as either agreement or disagreement with the positions therein. The Companies are limiting their reply comments to specific points of certain submissions that either are at odds with specific aspects or the general thrust of the Companies' positions, or support the Companies' positions.

3. For the purpose of the Companies’ reply comments, the term “Internet service provider”, or “ISP”, should be understood to mean those persons engaged in activities which may range from the simple provision of Internet access to the hosting of Web site content, or any combination thereof.


2. INTERMEDIARY LIABILITY

4. All stakeholders, including content providers, ISPs and end-users, have a common interest in fighting illegal activities in the digital environment and establishing a predictable and efficient legal and business framework to ensure the full development of an electronic marketplace. As with other questions of copyright raised by digital technology, the issue of intermediary liability for on-line copyright infringement involves a matter of balancing the interests not only of owners against users, but also of intermediaries, such as ISPs. The Companies’ first round comments, therefore, advocated a balanced approach by proposing a package of copyright amendments that would reinforce the rights of creators and provide them with legal protection for technological measures and rights management information while creating greater certainty for the ISP industry.

a) Need for Certainty

5. A competitive Internet industry in Canada benefits both rights holders and users by ensuring a low-cost communications and storage platform, and is consistent with the Canadian Government's objective in relation to the dissemination of content for and by Canadians. The ability of ISPs to provide on a competitive basis the facilities and services necessary for the wide range of content will, in part, depend on how liability rules for all content, including copyright-protected content, affect the cost of their business.
6. As the Companies noted in their submission, even if the Copyright Board's Tariff 22 decision is upheld, the standard applies only to the use of music on-line for the right of communication to the public by telecommunication. Uncertainty remains as to the application of the exemption to other works, not to mention the extent of liability, if any, of ISPs for copyright infringement for other rights, such as the reproduction right.

7. The uncertainty of ISP liability for copyright infringement may affect investment in Internet services. Alternatively, it may lead ISPs to impose unduly restrictive requirements on their customers or to seek legal indemnities from them. The desire to avoid liability may also lead ISPs to remove material from Web sites they host, even where there is no conclusive proof that the content in question infringes copyright, thereby acting as de facto censors and potentially restricting freedom of expression. A balance must be struck between protecting the interests of both owners and users of on-line content, and encouraging the development of a strong and competitive ISP industry.

8. The Companies, therefore, strongly disagree with the submissions made by the Canadian Recording Industry Association (“CRIA”) and the Canadian Copyright Licensing Agency (“CANCOPY”) that there is no demonstrated need to address the issue of ISP liability at this time. The overwhelming majority of submissions that addressed this issue recognized the fact that, notwithstanding the Copyright Board's decision in Tariff 22, the Copyright Act should be amended to address the uncertainty that exists as to the existence and extent of ISP liability. Even the Society of Composers, Authors and Music Publishers of Canada (“SOCAN”), which has an application before the Federal Court of Appeal for judicial review of that decision, noted the present lack of clarity with respect to ISP liability.

9. The Companies also disagree with CRIA that copyright reform at this point should be limited to specific World Intellectual Property Organization (“WIPO”) Treaty issues that would allow Canada to ratify the Treaties. Even the Diplomatic Conference adopting the two WIPO Treaties recognized the concern that liability might be imposed on ISPs in circumstances in which they could not be expected to monitor the material that was made available. In order to provide some comfort for ISPs, the Conference adopted a statement expressing the understanding that the mere provision of physical facilities for enabling or making a communication does not itself amount to communication. The Companies, therefore, strongly agree with AOL Time Warner that addressing ISP liability while implementing the two WIPO Treaties achieves a balanced solution to addressing the identified digital copyright issues. This would allow Canada to meet the specific requirements of the WIPO Treaties as well as to address the concern of ISP liability.

10. In this digital environment, maintaining an appropriate balance between the rights of creators to benefit from the use of their works and the needs of users to access and use those works on reasonable terms, while ensuring that ISPs are not liable for the infringing activity of third parties that use their facilities and services, will create certainty for ISPs, all of which will stimulate the growth of electronic commerce and encourage the use of the Internet for content dissemination in Canada.


b) Standard of Liability

11. The Companies strongly disagree with the position advocated by CANCOPY that ISPs should be strictly liable for the reproductions that occur in the course of a transmission over the Internet and liable for secondary infringement for reproductions by their subscribers. The Companies note the disagreement among CANCOPY's own members on this issue. The Canadian Newspaper Association specifically stated in a separate submission that it "does not support any provision that would place strict liability on Internet service providers”.

12. The Companies disagree with CANCOPY that a compulsory licence for ISP activities should be introduced. Rather, the Companies agree with submissions such as that of AOL Time Warner that compulsory licensing in the form of a blanket licence is inappropriate for transmission functions, but more appropriate in the context of licensing content providers or Web site owners, those entities who actually control the content made available on-line.

13. This is consistent with the position taken by the Companies and numerous others in the 1999 Tariff 22 proceeding before the Copyright Board. Clearly it is inappropriate to impose a financial obligation for content on parties that act merely as intermediaries providing connections between content providers and content users when financial obligation can be placed on content providers. Additionally, imposing a blanket licence on the transmission function would slow the development and deployment of communications technologies by increasing the cost to each person for connection to the Internet. The costs associated with content must be borne specifically by providers and users of content, and not generally by providers and users of a transmission function.

14. Furthermore, the Companies disagree with the Society for Reproduction Rights of Authors, Composers and Publishers of Canada Inc. that the functions of an ISP regarding the reproductions that occur during a transmission over the Internet are analogous to the functions of existing cable and Direct-to-Home satellite transmitters for communications to the public by telecommunication. ISPs do not select the content that is transmitted over their facilities; rather, they merely transmit the content that has been selected by others. As the Companies noted in their submission, the right of reproduction in the Act was never intended to capture the transient type of "reproductions" that occur in the course of a transmission over the Internet. These transient reproductions do not represent the final product or work to be consumed, but rather a temporary and necessary step in a transmission. In the Companies' view, therefore, ISPs should not be liable for the temporary reproductions that may occur during the course of a transmission over the Internet. The Public Interest Advocacy Centre (“PIAC”) also objects to ISP liability for such reproductions.

15. The Companies support the reference by both the Canadian Cable Television Association (“CCTA”) and TELUS to s. 36 of the Telecommunications Act that prohibits Canadian carriers from "controlling the content" or "influencing the meaning or purpose of telecommunications" they carry for the public. This section further supports the position that there should be no ISP liability for transmission type functions given the inability of ISPs to influence or control third-party content.

c) Benefits of Notice and Notice Regime

16. All stakeholders, including content providers, ISPs and end-users, have a common interest in fighting illegal activities in the digital environment and establishing a predictable and efficient legal and business framework to ensure the full development of an electronic marketplace.

17. However, contrary to CRIA's argument that a blanket ISP exemption from liability for transmission type functions would take away an incentive to cooperate, the approach advocated by the Companies and numerous other parties clearly demonstrates that the contrary is true (e.g. CCTA, TELUS, Information Technology Association of Canada, Canadian Chamber of Commerce, Canadian Association of Internet Providers, IBM). For example, even subsequent to receiving a favourable Copyright Board decision in Tariff 22 exempting the Canadian ISP industry from liability, the industry voluntarily introduced procedures to assist copyright owners in fighting copyright infringement on the Internet. The notice and notice approach proposed by the Companies and these other parties in fact builds upon these existing cooperative efforts in an attempt to extend these same benefits to all rights holders. This approach also recognizes that rights holders may require a more expeditious method to obtain a court order in those exceptional circumstances where allegedly infringing content is not removed voluntarily, and supports the introduction of some form of expedited procedures. CRIA's submission in this regard, and its approach to copyright reform generally, is nothing short of self-serving and one-sided, creating a disincentive for cooperation between rights holders and service providers.

18. Contrary to the approach adopted in the U.S. Digital Millennium Copyright Act (“DMCA”), the Companies favour an approach that relies more on notice and that resorts to takedown supported by a court order only in exceptional cases. Even SOCAN cautions that Canada should not repeat the same mistakes or complexity of the DMCA. The Companies also agree with the observations of PIAC that the U.S. notice and takedown regime infringes on user privacy and that the allegations of copyright owners are given the effect of judicial injunctive relief. Finally, the Companies support the position of the CBC, which opposes a notice and takedown regime for copyright infringement, arguing that such a regime should be reserved when the public interest is clearly compromised, e.g. child pornography or hate literature.


3. MAKING AVAILABLE

19. The Companies generally support the CBC's suggestion that more consultation among the affected parties may be needed in order to better understand the implications of introducing an exclusive making available right for performers and sound recording makers and the impact on other rights holders. Such discussions could also include the possible competitive impacts suggested by both the Canadian Association of Broadcasters and the CCTA.

20. The Companies, however, disagree with SOCAN's comment that it may be necessary to revisit the compulsory licensing regime for performing rights societies to ensure a level playing field among the various rights holders. The existing compulsory licensing regime reflects Canada's current copyright policy of wanting to make music repertoires readily accessible in exchange for the payment of royalties, in recognition of the impossibility of having to otherwise negotiate rights individually.


4. LEGAL PROTECTION OF TECHNOLOGICAL MEASURES AND RIGHTS MANAGEMENT INFORMATION

21. The Companies note the numerous submissions from individuals from both Canada and the U.S., as well as submissions from various organizations, that object to Canada’s adopting to the same extent the U.S. DMCA approach to the protection of technological measures and rights management information. All of this highlights the importance for Canada to adopt an approach that builds on the lessons learned from other jurisdictions.

22. The challenge for the Departments is to develop copyright policies that are consistent with and promote international standards of copyright protection while continuing to promote Canadian priorities, choices and values. In attempting to achieve a balanced approach to copyright reform, the Companies have proposed a package of copyright amendments that would reinforce the rights of creators, provide them with legal protection for technological measures and rights management information, while creating greater certainty for the ISP industry.

23. Finally, the submissions demonstrate a general agreement that existing Canadian privacy laws will apply to the collection, use and disclosure of personal information by rights holders such that there is no need to have special privacy provisions in the Copyright Act.


5. CONCLUSION

24. For Canada to truly succeed in the knowledge-based economy, Canadians need to create and have easy access to information and content on the Internet. The competitive advantage in electronic commerce will be based on the ability to develop advanced information products. In many ways, therefore, the future growth of the Internet as a cultural, entertainment and information medium depends upon developing systems that provide adequate protection and compensation to content creators and intellectual property rights owners while ensuring Canadians reasonable, legal access to copyright works.

25. The Companies stress that, when compared to other jurisdictions, Canadian copyright legislation is already relatively advanced and its degree of compliance is high with respect to international standards. Therefore, changes to the policy framework for copyright should not hinder the full potential of the Internet and the digitally networked environment. In the Companies’ view, maintaining an appropriate balance between the rights of creators and users of content while creating certainty for ISPs will stimulate the growth of electronic commerce and encourage the use of the Internet for content dissemination in Canada.

26. The Companies once again welcome the opportunity to be part of the public debate on these important issues and look forward to participating in any future consultations.









1. INTRODUCTION

1. Pursuant to the call for comments in the Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet (”the Consultation Paper"), jointly issued on 22 June 2001 by Industry Canada and the Department of Canadian Heritage ("the Departments"), Bell Canada (including Bell Sympatico Internet service provider) and Bell Globemedia Inc. (including CTV Inc. and Sympatico-Lycos Inc.) submit the following reply comments on behalf of and with the concurrence of the following companies: Bell ExpressVu LP, Northwestel Inc. and Télébec ltée. (collectively, "the Companies").

2. The Companies note that, subsequent to submission of their initial comments of 15 September 2001, Jump TV withdrew its application for a tariff, pursuant to Section 31 of the Copyright Act, to cover retransmission via the Internet of over-the-air broadcast signals. The Companies had stated that the need for resolution of the legal uncertainty as to the role of the Compulsory Retransmission Licence ("the Licence") in an on-line world made clarification of the issue by legislative action appropriate. Jump TV’s withdrawal of its application to the Copyright Board does not change the Companies' position. Clarification of this issue by legislative action remains appropriate and necessary.

3. The Companies have reviewed and considered the comments submitted to the Departments. The Companies did not find any arguments which could cause them to amend or vary the positions set out in the Companies' comments submitted on 15 September 2001. The Companies do not intend to comment on each submission made by other parties. Rather, the Companies are limiting their reply comments to specific points of certain submissions that are at odds with specific aspects or the general thrust of the Companies' positions. Silence with respect to the comments of other parties, however, should not be construed as either agreement or disagreement with these submissions.


2. ADVERTISING

4. In its submission, the Canadian Cable Television Association made the following comment with respect to banner advertising:

The use of banner advertising in conjunction with retransmission of distant signals over the World Wide Web is not a copyright issue; to the extent that banner advertising impacts on Canadian broadcasters it could be addressed by the CRTC in the context of the New Media exemption order;

5. The Companies disagree with this statement and hold to the position set out in their initial submission. Maintaining the balance in the relationship between the transmitter and the retransmitter operating under the Licence is a copyright issue. Allowing the retransmitter to change its role by introducing advertising on retransmitted signals upsets that balance.

6. As was discussed in detail in the Companies’ initial submission, were retransmitters to be allowed to add advertising to the signals they retransmit, there would be a negative consequence for the transmitter. As a retransmitter is permitted to retransmit a broadcast signal as a result of copyright policy set out in the Copyright Act, then it is obvious to the Companies that a copyright issue arises when the retransmitter uses the signal in such a way as to negatively impact the operations of the transmitter.

7. What a retransmitter can and cannot do when retransmitting a signal pursuant to the Licence is a copyright issue, and can be addressed through copyright policy, legislation and regulation. The CRTC has previously determined that regulating Internet broadcasting would not materially contribute to the implementation of Canadian broadcasting policy. There is no need for the CRTC to reconsider its Exemption Order when the matter is a copyright issue.


3. TERRITORIAL RESTRICTION

8. The CBC has proposed that, before it can avail itself of the Licence, an Internet retransmitter should be required to submit the technological measures it intends to use to restrict the territorial reach of its retransmissions to a committee of experts for prior approval. The CBC has proposed that the retransmitter's technological measures be evaluated against pre-established industry technical standards. The Companies disagree with this proposition.

9. While the CBC acknowledged that it had not gone into details, the devil is in the details. Getting agreement on technical standards from industry representatives of broadcasters, rights holders and departments could be an exhausting process. Equally it could be a never-ending process given that, as technology evolves, there would be a continuous demand to update the
pre-established technical standards accordingly.

10. Such a procedure could also be subject to abuse. While access to the Licence by Internet retransmitters would be legally allowed, Internet retransmission under the Licence could, in fact, be interminably blocked by procedural and bureaucratic measures that withhold approval of an Internet retransmitters' proposed technological measures. As well, the requirement for such prior approval would not resolve the dilemma of what to do when approved technological measures used by an operating Internet retransmitter are subsequently compromised. Approval before the fact gives an acceptance of the proposed measures as adequate. If such measures subsequently prove to be inadequate, the retransmitter nevertheless has been approved. The Companies submit that an Internet retransmitter should not be required to demonstrate the sufficiency of its territorial restraint measures before it undertakes retransmission. Rather, the Internet retransmitter must continuously demonstrate the sufficiency of its territorial restraint measures while it is carrying on its retransmission operation.


4. REACH OF COPYRIGHT POLICY

11. The Companies note that a number of submissions have suggested that, if Internet retransmissions are allowed, such retransmitters, even though operating pursuant to a CRTC exemption order, should be subject to obligations similar to those imposed on retransmitters operating under Broadcasting Act licences, or that the holding of a licence under the Broadcasting Act be a prerequisite for access to the Licence. The Companies disagree with such positions.

12. The Companies indicated in their comments their support of the CRTC's decision to refrain from regulating broadcasting over the Internet. The Companies also noted that the Licence should not be amended so as to frustrate the implementation of Canadian broadcasting policy as it relates to retransmission, nor should Canada's copyright regime undermine the role of broadcasters. As well, the Companies note that the CRTC, as a general policy, reviews its exemption orders after they have been in place for five years.

13. In implementing copyright policy, one should be mindful of broadcasting policy where appropriate. However, the Companies submit that broadcasting policy and broadcasting policy proposals should not be implemented through copyright policy and legislation.