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PROCESSUS DE RÉFORME DU DROIT D'AUTEUR Commentaire de l'Association canadienne de télévision par câble reçu le 24 octobre 2001 par courriel
COMMENTAIRES SUR LES SUGGESTIONS
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Commentaire de l'Association canadienne de télévision par câble reçu le 24 octobre 2001 par courriel
Objet : CCTA's Reply Comments - Oct 24, 2001
PDF Version of letter
October 24, 2001
Comments – Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
235 Queen Street
5th Floor West
Ottawa, ON K1A 0H5
Dear Sir or Madam:
Please find enclosed the reply comments filed today by the CCTA in response to submissions on the “Consultation Paper on the Application of the Copyright Act’s Compulsory Retransmission Licence to the Internet”. The CCTA has no objection to this submission being made available to the public on the departments’ web sites.
Do not hesitate to contact me if you have any questions.
President & CEO
PDF Version of comments
Copyright Act's Compulsory Retransmission
Licence to the Internet
Submitted by the
Canadian Cable Television Association
October 24, 2001
1. These comments are provided by the Canadian Cable Television Association ("the CCTA") in reply to the submissions to the Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet ("the Consultation Paper").
2. The CCTA is replying specifically to the comments provided by the Media Content Coalition and JumpTV. The fact that the CCTA has chosen not to reply to a particular submission or comment should not be taken as either agreement or disagreement with that submission or comment.
3. Having read the submissions filed in response to the Consultation Paper, the CCTA remains committed to its initial position that the Copyright Act should remain technologically neutral and that any amendments to the Act should not impair the ability of cable operators to take advantage of developing telecommunications technologies to deliver services to consumers. However, the CCTA also recognizes the legitimate concerns of rights holders who fear that Internet-related technology may be used to retransmit television signals in ways that could negatively effect the value of the programming rights associated with those signals.
4. We believe that with limited amendments to section 31 of the Copyright Act, the Government can provide broadcasters and other rights holders with adequate safeguards against infringing activity in a manner that respects the technological neutrality of the Act and preserves the ability of cable operators and other broadcast distribution undertakings (BDUs) to take full advantage of new technologies.
5. The CCTA's comments on the principles that should be reflected in such legislative amendments are provided below in our reply to the submission by the Media Content Coalition ("the Coalition").
Media Content Coalition
6. The CCTA acknowledges the effort by the Coalition to take into account the concerns expressed by the CCTA that amendments to section 31 of the Copyright Act should not impair the ability of cable operators to take full advantage of emerging technologies to deliver advanced services to their subscribers. The Coalition has identified several issues for discussion - including the need for territorial restrictions, the use of advertising material and the proposed elements of a definition of "retransmitter" - which the CCTA submits can be fully addressed in the legislation in a technologically neutral manner.
Proposed Prohibition Against Alteration of Signals
7. Existing retransmitters, including cable, satellite and MDS operators, operate under a number of regulatory requirements imposed by the Broadcasting Act and the Broadcasting Distribution Regulations (the BDU Regulations). These requirements are imported into section 31 of the Copyright Act by subsection 31(2)(b) which requires that retransmissions be lawful under the Broadcasting Act. Therefore, if a retransmitter is in breach of any of the regulatory requirements imposed by the BDU Regulations, the retransmission will also be an infringement of copyright.
8. Section 7 of the BDU Regulations establishes the general prohibition against the alteration or deletion by a BDU of the programming services that it delivers. This section protects the rights of broadcasters and those who hold rights in the works embodied in retransmitted signals. Paragraphs (a) to (f) of section 7 establish a number of specific exceptions to the general prohibition against alteration and deletion.1
9. The CCTA agrees with the Coalition that subsection 31(2)(c) of the Copyright Act, which currently requires that a local or distant signal be retransmitted "simultaneously and in its entirety" should be amended to better reflect the requirements imposed on retransmitters by section 7 of the BDU Regulations. We note that section 7 of the BDU Regulations is drafted in a technologically neutral manner that applies equally to all retransmitters.
10. CCTA therefore supports an amendment to subsection 31(2)(c) so that it would read: "...the signal is retransmitted simultaneously and without alteration, except as otherwise required or permitted by or under the laws of Canada." The reference to alterations that are required or permitted by law would include the specific exceptions enumerated in section 7 of the BDU Regulations.
11. The CCTA agrees with the Coalition and the departments that the simultaneity requirement should be subject to "any reasonable delay, or loss of information (which lost information is not evident to a viewer) arising solely from steps necessary to encompass the conversion of a broadcast program from the analog format suitable for retransmission."
Elements of a New Definition of "Retransmitter"
12. CCTA agrees with the Coalition that section 31 could be further amended to provide that only a "retransmitter" is entitled to the benefit of section 31(2) and to provide for the making of regulations to define the term "retransmitter". The CCTA submits that any new regulations should take a functional approach to defining retransmitter and should not attempt to define a retransmitter by reference to the technology used.
13. The CCTA submits that the definition of retransmitter should include the following three principles, expressed in appropriate regulatory language:
* The retransmission of the local or distant signals must take place entirely over a "closed user system", as defined in the regulations;2
* The retransmitter must take reasonable border and technological controls (as defined further in the regulations3) to restrict the reception of local or distant signals to subscribers4 located in Canada; and
* The retransmitter may not insert or cause to be inserted advertising (as defined in the regulations) in or around the retransmitted signal.5
14. Incorporating these elements into a definition of "retransmitter" will address the specific attributes of some forms of Internet retransmission that have been identified by rights holders as causing concern, but will do so in a way that preserves the technological neutrality of the Copyright Act, and the ability of cable operators and other BDUs to deliver advanced interactive services to their subscribers using new communications technology including the Internet.
15. The CCTA does not agree with the Coalition's submissions on the need to create new obligations for a retransmitter to take "corrective action" in response to certain actions by that retransmitter's subscribers.
16. As we stated in our September 14 submission, it would be unreasonable to compel a retransmitter operating in complete compliance with the law to cut off service to a customer with absolutely no due process.
17. Furthermore, retransmitters should not be required to notify rights holders and identify a subscriber on the basis of a "reasonable belief" that the subscriber is engaged in infringing activity. Not only is this obligation unreasonable and far in excess of the substantial remedies already available under the Copyright Act, the CCTA does not believe that such a notification requirement would comply with federal privacy legislation.
18. We also disagree with the suggestion that retransmitters should be obliged to discontinue service to a subscriber based merely on the belief of improper conduct. As we have previously noted, such a requirement would seem to be at odds with the obligation of a cable operator under the BDU Regulations to provide service to households within its licensed service area.
19. The CCTA submits that the Copyright Act already provides sufficient remedies, including access to injunctive relief, to respond to incidents of infringement. Legitimate retransmitters who are acting in compliance with the Copyright Act and the Broadcasting Act should not bear the burden of enforcing third parties rights, especially in the absence of any judicial oversight or any other proof of wrongdoing beyond a "reasonable belief".
20. The CCTA agrees with JumpTV that the question that should be asked in deciding the scope of the section 31 statutory licence is not whether or not certain types of retransmitters can be trusted to contain their retransmissions to inside Canada, but rather whether an individual retransmitter, regardless of the technology used, is conforming to the territorial restriction guidelines. We believe that the approach suggested above, which defines the term "retransmitter" based on certain fundamental objective criteria without reference to technology, will provide sufficient safeguards for rights holders without placing any undue constraints on the technology that may be used to deliver retransmitted signals to viewers.
21. The CCTA disagrees with JumpTV's submission on what constitutes the "spillover" of a retransmission into a foreign jurisdiction. JumpTV claims that because the signals delivered by cable can be "proxied" by third parties and subsequently retransmitted by those third parties via the Internet to other jurisdictions that somehow this means that cable retransmitters are subject to spillover.
22. Clearly this interpretation cannot stand. CCTA submits that any consideration of the spillover of retransmitted signals has to distinguish between the reception of retransmitted signals outside Canada that is the direct result of the retransmitter's own actions or omissions, and the reception outside Canada of retransmitted signals that results from the actions of an intervening third party over which the retransmitter has no control.
23. Cable operators deliver retransmitted signals exclusively to subscribers who have access to the cable network. Cable networks do not cross international borders. Therefore, under no circumstances can it be said that cable retransmissions spillover to foreign jurisdictions. To suggest otherwise is ludicrous and can only stem from a complete lack of understanding of how a cable network operates.
24. If a third party somehow manipulates the signals delivered by the cable system and causes those signals to be delivered by some means to locations outside Canada, that act is a completely new and separate retransmission. The spillover that results from the subsequent retransmission cannot be said to be the result of the initial retransmission by the cable operator any more than it is the result of the initial over-the-air transmission by the broadcaster.
25. The CCTA appreciates the opportunity to provide these comments in reply to the submissions received by the departments. We look forward to continuing to work with the government and the other stakeholders to address the important issues raised in the Consultation Paper.
1 For example, BDUs are permitted to alter or delete a program to comply with the Elections Act, to comply with a court order, to broadcast an emergency alert message, and to protect third party rights in the programming.
2 In defining the concept of a "closed user system", the CCTA agrees that this does not include, for example, the World Wide Web.
3 In defining those reasonable measures, the CCTA submits that the current level of security provided by cable BDUs provides reasonable border and technological control.
4 In limiting retransmitters to a subscription model and not an advertising-based model, it is understood that unscrambled low power STV systems would be grandfathered.
5 The CCTA submits that this condition would not preclude the delivery of advanced interactive features (including the delivery of Internet access to a TV screen simultaneously with a retransmitted signal, delivery of an interactive program guide or delivery of interactive program features) where the interactive features are initiated by the subscriber and not by the transmitter.
CCTA Reply Comments on Internet Retransmission
October 24, 2001
Page 7 of 6
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