Article from
Intellectual Properties Update
December 2001
Internet TV copyright issues to be clarified
Although the technology has long existed to allow cable companies and satellite television
providers to pick up over-the-air signals and retransmit the signals to their own subscribers, such
retransmissions would ordinarily be a breach of the copyright in the original programming, without
the consent of rights holders in the programs embedded in the signal.
However, since 1989, Canada has had a compulsory license regime that significantly lessens
the administrative burden on cable companies and satellite television providers in securing the
copyrights necessary to retransmit distant programming. The retransmission regime embodied in
section 31 of the Copyright Act permits the retransmission of copyrighted works embedded in
distant over-the-air television and radio signals without the consent of rights holders, provided
certain conditions are met, including the payment by retransmitters of royalties set by the Copyright
Board.
The compulsory license regime was set up with cable companies (and later satellite television
providers) in mind. However, a few years ago, a company named iCraveTV proposed an Internet
service in which television programming would be streamed via the Internet, inside a frame with
banner advertising sold by the Internet company. iCraveTV kicked off a storm of controversy by
attempting to utilize the distant signal retransmission regime to deal with the issue of copyright
licenses.
The iCraveTV concept collapsed as a result of U.S. legal proceedings. However, the issue was
again raised by a company named JumpTV.
JumpTV proposed to distribute distant programming signals over the Internet on its web site
surrounded by banner advertising. In August 2000, JumpTV objected to the proposed distant signal
retransmission tariff filed by copyright collectives with the Copyright Board because the proposed
tariff failed to cover retransmissions using the Internet.
JumpTV’s objection raised a threshold legal question; namely, whether the Copyright Act
distant signal royalty regime applies only to traditional retransmitters (i.e. cable companies and DTH
satellite distributors), or whether it also applies to Internet retransmitters.
STIKEMAN ELLIOTT
2
The Copyright Board had been planning to hold a hearing into JumpTV’s application starting
this December. However, in an October 10, 2001 letter to the Copyright Board, JumpTV’s counsel
stated that the company would not base its business on banner Internet advertising and announced
the withdrawal of the application. The withdrawal means the Copyright Board no longer has to deal
with this issue.
As the Copyright Board process was unfolding, Heritage Canada and Industry Canada had
been conducting a consultation on the application of the retransmission regime to the Internet. The
first round of submissions were received in mid-October.
One of the key questions raised in the consultation was whether Internet providers who
stream distant signals over the Internet should be able to claim the same treatment as cable and
satellite television retransmitters. However, at the end of October, Industry Minister Brian Tobin
and Minister of Canadian Heritage Sheila Copps both confirmed the federal government’s plan to
amend the Copyright Act to make it clear that Internet transmissions are not covered under the
distant signal regime. The Ministers both indicated that the amendment would likely be introduced
before Parliament’s Christmas recessThis announcement appears to have effectively ended the
consultation process.
We will continue to monitor the issue, and provide further updates in the future.