Canadian Broadcasting Corporation (CBC)

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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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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Submission from Canadian Broadcasting Corporation (CBC) on September 17, 2001via e-mail

Subject:

PDF Version of the Consultation paper on digital copyright issues

PDF Version of the Consultation paper on the application of the
copyright act’s compulsory retransmission licence to the internet

CONSULTATION PAPER ON THE APPLICATION OF THE COPYRIGHT ACT'S COMPULSORY RETRANSMISSION LICENCE TO THE INTERNET Comments submitted by the Canadian Broadcasting Corporation to the Copyright Policy Branch Canadian Heritage and the Intellectual Property Policy Directorate Industry Canada September 15, 2001

COMMENTS SUBMITTED BY THE CANADIAN BROADCASTING CORPORATION IN RESPONSE TO THE CONSULTATION PAPER ON THE APPLICATION OF THE COPYRIGHT ACT'S COMPULSORY RETRANSMISSION LICENCE TO THE INTERNET



I. INTRODUCTION

The Canadian Broadcasting Corporation ("CBC") is a Crown corporation governed by the Broadcasting Act of 1991, and is subject to the regulations of the Canadian Radio-Television and Telecommunications Commission (the "CRTC").

As Canada's public broadcaster, CBC offers services in English and French, and is uniquely responsible to all Canadians for providing them with access to means of expression, talking about their reality and participating in the development of their culture. The provisions of the CBC mandate are laid down in the Broadcasting Act of 1991. One requirement of the mandate is to make available a wide range of programming that informs, enlightens and entertains throughout Canada by the most appropriate and efficient means.


II. EXTENSION OF COMPULSORY LICENSING OF INTERNET-BASED RETRANSMISSION

On account of the very terms of the mandate underlying its existence, namely the distribution of its broadcasting signals to the largest possible number of Canadians, CBC is not in disagreement with the concept of the compulsory licensing regime provided for in section 31 of the Copyright Act (hereinafter the "Regime") being extended to Internet-based retransmission. In fact, the Internet is just an additional broadcasting window, which the CBC cannot ignore, in view of its commitment to Canadians and the responsibility it has to fulfil its mission by the most appropriate and efficient means.

CBC is of the opinion, however, that this extension of the Regime should not occur at the expense of copyright holders and others concerned. Furthermore, in order to keep a balance between the objectives of Canadian broadcasting policy and the holders of rights, we think that in the event the Regime be so extended, the undertakings that will ensure Internet-based retransmission (hereinafter the "Internet-based retransmitters") should be required to comply with certain minimum conditions and restrictions.


III. TECHNOLOGICALLY NEUTRAL REGIME SUBJECT TO SPECIFIC RESTRICTIONS AND CONDITIONS

To the extent that the Internet-based retransmitter's activities do not infringe anyone's rights or any laws in force, and subject to compliance with certain minimum conditions and restrictions, which we will state below, CBC has no basic objection to the Regime being amended so as to provide expressly for its technological neutrality.

A. Territorial restrictions

The Canadian broadcasting system is based on a complex set of licences for distributing broadcast works in which the conditions of use are inevitably linked to particular territories. Should the Regime be extended to Internet-based retransmitters, it goes without saying that this extension should not occur at the expense of agreements in effect or result in a decrease in the potential for commercial use of a given work.

CBC is therefore of the opinion that any Internet-based retransmitter that wishes to benefit from the advantages of the Regime should first submit convincing evidence to the effect that it has the technology required to ensure that its retransmission operations do not go beyond the limits of Canadian territory.

Without going into the details, a demonstration of the technology proposed by the Internet-based retransmitter to this effect should take place before a committee of experts, which could be made up of representatives of broadcasters, rights holders and departments. Evaluation of the technology proposed by the Internet-based retransmitter would be made according to technical standards on which the industry had previously reached agreement.

B. Technical measures designed to prevent downloading

Considering the greater vulnerability of works on the Internet, notably the high risk of infringement, CBC is of the opinion that any Internet-based retransmitter wishing to benefit from the advantages of the Regime should be required to put some effective technical measures in place to prevent the downloading of a signal, in whole or in part.

As suggested above in respect of the technology designed to limit the territorial scope of retransmission, Internet-based retransmitters will have to provide convincing proof of the effectiveness of the said technical measures before beginning their retransmission activities. This evidence could be evaluated by a committee made up as suggested in Paragraph A. above. Finally, the industry could mutually agree on the standards with which Internet-based retransmitters would have to comply respecting such technical measures.

C. Regular monitoring and evaluation of technical measures

For the reasons stated above, CBC is of the opinion that it would be appropriate to institute a monitoring mechanism designed to regularly test the effectiveness of, and compliance with, the various technical measures proposed in Paragraphs A. and B. above.

Considering the constant development of technology, it seems important to ensure that the standards in force continuously meet their objectives. In fact, failing a regular reevaluation, the most sophisticated technical measures may become obsolete and turn out to be totally inefficient. In view of the substantial economic benefits that access to the Regime would give them, it seems logical to us that the costs and responsibility of operating such a monitoring mechanism should be supported by the Internet-based retransmitters.

Needless to say, any technical measure may have its failings and therefore the measures proposed cannot be perfectly effective. Nevertheless, as suggested above, stakeholders could agree in advance on the standards and percentages of effectiveness sought. If the standards of effectiveness of technical measures put in place by an Internet-based retransmitter fell below the required thresholds, the Internet-based retransmitter would no longer be able to rely on the advantages of the Regime unless it remediates to the situation within a given time.

In other words, any Internet-based retransmitter failing to comply with the conditions of eligibility for the Regime would become liable under the Copyright Act and subject to any recourse provided for infringement therein (i.e. injunction, damages, interest) since its retransmission operations would then be regarded as unauthorized by copyright holders.

D. Obligations of broadcasting distribution undertakings

In exchange for the rights provided under the licence issued by the CRTC, one of which being to benefit from the advantages of the Regime, broadcasting distribution undertakings ("BDUs") are subject to certain conditions. These conditions include the obligation to retransmit complete signals, including closed captioning, the substitution obligation, participation in a Canadian program development fund and so on.

CBC is of the opinion that similar obligations and restrictions should be imposed on Internet-based retransmitters. Although the CRTC has expressed its intention to exempt, for the time being, Internet-based retransmitters from any regulation, CBC feels that it would be unfair to allow Internet-based retransmitters to take advantage of the Regime the same as BDUs without imposing some of the conditions and restrictions that have been instituted in order to keep a certain balance within the Canadian broadcasting system.

The description of the conditions and restrictions that might eventually be imposed on Internet-based retransmitters and the terms and conditions of their application go beyond the scope of this consultation. Nevertheless, should the Regime be extended to Internet-based retransmitters, such an evaluation must no doubt occur before Internet-based retransmitters can be authorized to begin operations.


IV. COMPLIANCE WITH CONDITIONS OF APPLICATION OF REGIME

Should the Regime actually be extended so as to enable Internet-based retransmitters to take advantage of it, besides the conditions and restrictions described above, Internet-based retransmitters will also have to comply with all the conditions of application of section 31 of the Copyright Act.

This means that any signal being retransmitted should be so retransmitted in its entirety at the same time as the original signal is broadcast. Thus any change to the signal at the time of retransmission would be a breach of the conditions of application of the Regime and would thus prohibit the offender from enjoying the benefits of the Regime.

CBC is of the opinion that the addition of advertising banners during an Internet retransmission would affect the integrity of the signal. Furthermore, tolerating the addition of such banners would interfere with the existing commercial agreements between CBC and its advertisers, in addition to decreasing the economic value and the impact of the commercials aired by CBC. In fact, businesses that purchased advertising time on CBC would have good reason to feel prejudiced if they had to share this time with other busiesses, perhaps competitors.

For all these reasons, CBC is of the opinion that if the Regime were to be accessible to Internet-based retransmitters, the provisions of section 31 of the Copyright Act should be amended so as to provide expressly that the addition of any advertising banner at the same time as the retransmission of any signal would be deemed to affect the integrity of the retransmission of this signal.


V. CONCLUSION

CBC is not opposed to extension of the Regime to Internet-based retransmitters. In order, however, to be able to benefit from the advantages allowed by the Regime, Internet-based retransmitters must be required to implement satisfactory technical measures designed to prevent infringement of works and signals on the Internet as well as to limit the territorial scope of their retransmission operations. Furthermore, Internet-based retransmitters should be subject to similar conditions and restrictions to those imposed on conventional BDUs. Finally, Internet-based retransmitters should comply with all conditions of applicability of the compulsory licensing regime provided for in article 31 of the Copyright Act. Notably, Internet-based retransmitters should refrain from adding any advertising banners to any broadcast signal whose retransmission they ensure.

In closing, CBC wishes to underscore the timeliness of this consultation paper prepared jointly by those in charge of copyright policy at Industry Canada and Canadian Heritage, as well as the quality of the analysis of the various aspects of issues raised therein.


Respectfully submitted,

Montreal, September 15, 2001.

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I. INTRODUCTION

The Canadian Broadcasting Corporation (CBC) is a Crown corporation governed by the Broadcasting Act of 1991, and is subject to the regulations of the Canadian Radio-Television and Telecommunications Commission (the CRTC).

As Canada’s public broadcaster, CBC offers services in English and French, and is uniquely responsible to all Canadians for providing them with access to means of expression, talking about their reality and participating in the development of their culture. The provisions of the CBC mandate are laid down in the Broadcasting Act of 1991. One requirement of the mandate is to make available a wide range of programming that informs, enlightens and entertains throughout Canada by the most appropriate and efficient means.

II. ON-DEMAND COMMUNICATION OF WORKS

The first part of the consultation paper deals with the appropriateness of amending the Copyright Act (hereinafter sometimes referred to as the “Act”) in order to give a specific right to authors, as well as to performers and sound recording makers, to authorize on-demand communication of their works on the Internet. On-demand communication, which is being discussed here, involves both access to the work and downloading of the work on the user’s computer.

First of all, CBC agrees with the interpretation by the departments to the effect that the present wording of the Act implicitly recognizes an on-demand communication right, at least with regard to copyright holders. The Copyright Act would therefore not need to be amended in this regard.

For performers, an on-demand communication right exists only where their performance has not already been fixed. Sound recording makers do not benefit from such right.

In analysing this issue, it should be noted that both performers and sound recording makers benefit from the right to authorize reproduction of their performances or sound recordings. This right, as we know, allows its holders to exercise some control over unauthorized used in the virtual environment as well as in connection with works fixed in physical form.

Still, the fact of granting an on-demand communication right to performers and sound recording makers considerably complicates the clearance of rights issue, at least for makers and suppliers of content. CBC is of the opinion, however, that the proposed extension of performers’ and sound recording makers’ rights should be explored further, but at this stage, discussion among the stakeholders does not seem sufficiently advanced to enable it to take a stance. If, however, the Copyright Act were amended to provide for an on-demand communication right for performers and sound recording makers, we think that this right should not in any way encompass streaming activities.

One solution might be to provide for an assumption similar to the one in section 17(1) of the Copyright Act. So, from the time when a performer or sound recording maker authorized the incorporation of their performance or recording in an audiovisual or multimedia work, they could no longer benefit from their on-demand communication right, at least as far as such an audiovisual or multimedia work was concerned. We think that this solution might attenuate the effects of the creation of such a right on the production of audiovisual or multimedia material, but we repeat that it would be premature to take a stance on this matter.

Finally, it would be imperative that such an on-demand communication right, if created, should not be effective retroactively.

III. CIRCUMVENTION OF TECHNOLOGICAL MEASURES FOR THE PROTECTION OF HOLDERS’ RIGHTS

Because works distributed on the Internet are vulnerable, several technological measures have been developed in order to try and protect such works from the high risk of infringement. CBC is of the opinion that any attempt to circumvent these technological measures should be prohibited and severely sanctioned. We also think that such prohibition should apply not only to circumvention activities per se, but also to the manufacture and distribution of any circumvention devices. It would be necessary, however, to exclude specifically all devices whose main purpose is a legitimate activity.

One of the arguments raised against this position in the consultation paper arises from the fact that some circumvention devices may sometimes (but not chiefly) be used for legitimate purposes. The examples of legitimate use given include devices enabling users to access works belonging to the public domain or to benefit from one of the exceptions provided for in the Copyright Act. We do not think that this is the right way to pose the question.

Actually, the fact that a work belongs to the public domain does not necessarily imply that any user may acquire, free of charge, some printed version of the work placed on the market by some publisher. The situation would be the same on the Internet. A supplier of content could decide whether or not to charge any surfer accessing a work in respect of which it has incurred certain costs with a view to its distribution on the Internet. Also, publishers wishing to give access free of charge to a work belonging to the public domain will certainly not accompany this work with technological measures intended to ensure its protection. As for the exercise of a right arising from an exception to the Copyright Act, the reasoning should be the same. The beneficiary of one exception to the copyright regime must still deal with market laws, for instance, purchasing a particular book at a set price, before reproducing it under cover of the exception claimed.

Thus, giving up on prohibition of the circulation of circumvention devices simply because such devices might provide access to works in the public domain or the exercise of a copyright exception cannot be justified, in our opinion.

In conclusion, CBC prefers the more general form of prohibition respecting all circumvention activities, including the manufacture and distribution of devices designed to circumvent technological measures used to protect the rights of copyright holders. We wonder, though, about the insertion of such provisions in the Copyright Act, particularly provisions aimed at prohibiting circumvention devices. It seems that the Criminal Code might be a more appropriate means of instituting and enforcing such prohibitions. The Copyright Act might quite clearly contain some complementary provisions, for example, making any attempt at circumvention a copyright infringement, regardless of the method used.

IV. ALTERATION OF RIGHTS MANAGEMENT INFORMATION

The consultation paper identifies rights management information to be protected as information making it possible to identify a work, that is, the title, name of author or first owner, or an identification code.

We think that legislative measures are required to discourage the alteration of such information since the Copyright Act does not currently contain any provisions aimed at protecting their integrity. In addition, CBC feels that all other information which the rights holder has decided to attach to his work, by watermarking or otherwise, should also be protected.

Moreover, only the rights holder or a person empowered by him should be able to amend this information. Allowing anyone else to make changes can only lead to confusion. A rights holder, however, who neglects to update information about the work in which he holds rights must live with the consequences of his omission.

We think that protection based on the provisions of sections 12 and 19 of the WPPT would be desirable in Canada. Furthermore, if international consensus were achieved concerning the adoption of a single identification code in the audiovisual field, we think it would be better to adopt this international code in Canada than to develop another code or alternative standards that might generate confusion for both the user and the rights holder.

V. LIABILITY OF NETWORK INTERMEDIARIES

We think that the Copyright Act should be amended to provide expressly for the non-liability of network intermediaries, as it does for cable and satellite distributors. Still, CBC agrees with the proposal in the consultation paper to the effect that exemption from liability would be lifted where network intermediary services were also content providers.

We are delighted that the Code of Ethics of the Canadian Association of Internet providers provides for the adoption by its members of rules of conduct, even if membership in this association remains optional.

As for the question of knowing whether a notice and take-down system similar to the one in the United States and Europe should be used in Canada, we think that such a system would be desirable but that it should be applied only when the public interest is clearly compromised or rights protected under the Charter of Rights and Freedoms are clearly breached. For example, when it is a matter of forcing an intermediary to take action to end activities related to the circulation of child pornography, or hate or defamatory literature, we are of the opinion that complaints should be submitted to an ombudsman responsible for investigating and having the power to order, by written notice, the immediate closing of sites deemed to be offensive or the take-down without delay of any material of the same nature. Since in many cases, the operator of the site is outside Canada, an international cooperation system will have to be set up under which the ombudsman in the jurisdiction concerned could issue the notice and take the necessary action to give effect to the closing of the site or take-down of material, as long as the domestic legislation entitles him to do so.

We do not think, however, that it would be appropriate to extend such a notice and take-down system to complaints based on alleged copyright violations. In fact, network intermediaries do not have either the expertise or resources to enable them to “judge” that the rights of a rights holder have been infringed. Unlike the propagation of offensive material, in which the situation is generally easy to check, disputes pertaining to copyright are often complex and require an in-depth analysis of the interests at stake. Furthermore, if a notice and take-down system were applied to copyright issues, content providers would be at the mercy of anyone claiming an infringement of rights, whether the claim was founded or not.

In closing, CBC wishes to underscore the timeliness of this consultation paper prepared jointly by those in charge of the copyright policy at Industry Canada and Canadian Heritage, as well as the quality of the analysis of the various aspects of issues raised therein.

Respectfully submitted,

Montreal, September 15, 2001.

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