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PROCESSUS DE RÉFORME DU DROIT D'AUTEUR
COMMENTAIRES SUR LES SUGGESTIONS
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Commentaire de Directors Guild of Canada (DGC) and the Directors Rights Collectives of Canada (DRCC) reçu le 02 novembre 2001 par courriel
Objet : Directors Guild of Canada's Reply Comments to the Government on the Copyright Reform ProcessVersion PDF
Government Consultation Papers on
Digital Copyright Issues
And the Application of the
Compulsory Retransmission License
to the Internet
Directors Guild of Canada (DGC)
And the Directors Rights Collective of Canada (DRCC)
Copyright Policy Branch,
And Intellectual Property Policy Directorate,
November 2, 2001
Via Fax (613) 941-8151
(Original to follow by Mail)
November 2, 20001
Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
235 Queen Street
5th Floor West
Dear Mr. Bruce Stockfish
Re: Copyright Reform Process: Reply Comments
These are the reply comments of the Directors Guild of Canada and the Directors Rights Collective of Canada (collectively, the 'Guild') in response to submissions with respect to the government consultation paper on the application of the Copyright Act's Compulsory Retransmission License to the Internet. Our comments on the Digital Copyright Issues consultation paper follow.
Internet Retransmission Consultation Paper
The Guild refers to the submissions of The Media Content Coalition ("MMC"), JumpTV.com Canada Inc. ("JumpTV"), Canadian Cable Television Association ("CCTA"), the Writers' Union of Canada, the League of Canadian Poets and the Playwrights Union of Canada ("TWUC").
The Guild remains firmly of the view that the compulsory retransmission licence must not be extended to the Internet. The Guild has had the benefit of a review of the Reply comments of the MCC and supports those reply comments. In particular, the Guild would like to reinforce the following points.
Need to Address the Issue Now
Although JumpTV has withdrawn its application to the Copyright Board for the present, the need to clarify that the Retransmission regime should not apply to the Internet remains urgent. The issues have been defined, the departments have studied the issues and the parties affected have submitted their positions and arguments. This momentum should not be interrupted. The issue remains urgent.
JumpTV, Bell Canada and the CCTA all argue for the need to maintain technological neutrality in the retransmission provisions of the Copyright Act. But their arguments are all hitched to the idea that only with technological neutrality can technological developments occur unimpeded. These arguments make no attempt to analyse the application of this principle in the specific case of a statutory exception. Statutory licenses have generally arisen in response to a particular technology, a particular set of circumstances. Such licenses would make no sense, and would distort and harm the market for rights holders' works, if they were extended to technologies with different impacts. As well, stated in the submission of TWUC at page 6:
"Last but not least, the Government states that the framework should be technologically neutral, to the extent possible. This may have the appearance of fairness, but in fact it is a dangerous principle. It has been said that rights often adapt themselves, while exceptions need to be adapted. For example, the reproduction right under the Copyright Act has proved sufficient to cover copying by means ranging from the pen to the typewriter to the photocopier to the computer. But it is critical to look in each instance at the potential impact that an exception in any particular media may have on the creator or the copyright material because of the technology involved: for example, an exception with respect to an on-line communication of a copyright work has the potential to do much more damage to its author than an exception in the print-on-paper world."
The Guild repeats its view that the principle of technological neutrality cannot be applied across the board without analysis, as the departments themselves recognize. More particularly, it cannot be applied to the matter of statutory licenses. A statutory licence in effect fixes a business model, from the rights holders' perspective, tying their hands in what would otherwise be a dynamic marketplace.
Closed Secure Network: Secure at the Subscriber End?
The Guild has had the benefit of reviewing the Reply Comments of both the Media Content Coalition and the CCTA. The Guild would like to support the position that appears to be common in both reply briefs to the effect that the Licence need not exclude the use of Internet Protocol technology on a closed, secure network. The Guild would like to point out, however, that if end users, or subscribers, are enabled thereby to retransmit signals once again on an open network, such as the World Wide Web, from their own homes, the issue of how to address re-retransmission would remain unresolved. If the definition of technologies to which the Licence applies is to be done by Regulation defining "retransmitter", the closed secure networks contemplated should not permit easy retransmission by subscribers.
The CCTA Reply Comments paper, in its response to JumpTV, takes issue with JumpTV's argument that because TV signals delivered by cable can be "proxied" by third parties and subsequently retransmitted by those third parties over the Internet, this constitutes "spill over" for which cable retransmitters are subject. The Guild would agree with the narrow point, but nonetheless, if the means by which cable retransmitters make retransmitted signals available to subscribers - Internet protocols on digital systems - greatly facilitate their further retransmission by subscribers, that is a matter of great impact on the structuring of the retransmission licence. In other words, if the closed, secure network employed by the cable companies leads to a point at the subscriber where it converges with or may be easily transferred to the open network, the potentially damaging effects of exposing the work contained in those signals to the open Internet persists.
The Guild accordingly suggests that the definition of retransmitter must be so crafted as to ensure that signals cannot be further retransmitted by subscribers of the retransmitted signal, should the proposed technological delivery system raise the possibility of that occurring.
The Guild therefore does not agree with the CCTA's position that it would be unreasonable to compel a retransmitter to cut off service to a customer in circumstances where that subscriber is further retransmitting a signal. Indeed, such a step should be obligatory. The situation can be compared to the issues being addressed in the context of ISP liability, and the proposed requirement for a notice and take down regime, which we discuss below.
Digital Copyright Consultation paper
The Guild will confine its remarks in this Reply to the issue of ISP liability. We refer to the submissions of the Canadian Association of Internet Providers ("CAIP"), CCTA and Telus. We have also had the benefit of reviewing the Reply of the Canadian Recording Industry Association ("CRIA") on this point.
The submissions from the ISPs represented above uniformly put forward a "notice, notice and take down (by court order only)" approach to ISP liability, suggesting that this interim measure, agreed to with CRIA, is suitable as a measured legislative response, in combination with a broad legislative extension of the common carrier exemption to certain ISP functions. The Guild disagrees. The informal notice, notice and take down provisions depend for their effectiveness upon the understood risk on the part of the ISP of potential liability for infringing material on its system under principles of joint liability. Pairing this system with a broad common carrier exception would remove whatever effectiveness it may currently have.
In the Guild's view, a notice and take down provision akin to that contemplated by the EU, and by the DMCA is the proper direction for our legislation to take.
The Guild appreciates the opportunity to make these reply comments.
The fact that the Guild has determined not to reply to any specific submissions does not imply approval or disapproval with that submission. The Guild reserves the right to make further comments on any issue and to participate in any further public consultations.
All of which is respectfully submitted.
Directors Guild of Canada
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