MICHAEL GEIST
Thursday, March 15, 2001
Before the days of Napster as the entertainment industry's public enemy No. 1, there was iCraveTV. Many Canadians will recall the Toronto-based Webcaster that burst onto the cyberscene in late November, 1999, by retransmitting U.S. and Canadian television signals directly onto the Web. Major broadcasters and sports leagues reacted with alarm, crying theft and launching legal action on both sides of the border.
Unfortunately, the Canadian side of the case was never litigated. A U.S. judge quickly applied U.S. copyright legislation to order iCraveTV to shut down, leaving people to speculate how Canadian law would treat the issue.
Although the iCraveTV site has been quiet for months, the issue of Internet retransmission has not disappeared. In fact, a heated battle has been brewing with new competitors such as Montreal-based JumpTV threatening to provide similar services and broadcasting and production groups seeking changes to the law.
What makes this issue particularly interesting is that despite claims to the contrary from many in the broadcasting community, the truth was that iCraveTV stood on fairly solid ground under Canadian copyright law. In reality, the issue is no longer whether iCraveTV's activities were legal in Canada, but whether Canadian law should now be changed so that Internet retransmission is explicitly addressed in the legislation.
Internet retransmitters such as iCraveTV rely on section 31 paragraph 2 of the Copyright Act, which provides for the right to retransmit television signals given that four conditions are met.
First, the retransmission must be of a local or distant signal. Since Internet retransmitters such as iCraveTV capture local or distant signals using antennas, they meet the requirements of this provision.
Second, the retransmission must be lawful under Canada's Broadcasting Act. Ironically, the Canadian Radio-television and Telecommunications Commission's decision to take a hands-off approach to the Internet -- a position also supported by the broadcasters -- cleared the way for Internet retransmitters to comply with this provision. In December, 1999, the CRTC issued an order exempting new media broadcasters, such as iCraveTV, from regulation under the Broadcasting Act.
Third, the signal must be retransmitted simultaneously and in its entirety. Internet retransmitters seek to comply with this provision by capturing the television signal, digitizing it, and immediately retransmitting it onto the Internet.
Fourth, the retransmitter must pay any applicable royalty or tariff. Since Canada's Copyright Board has yet to establish an Internet retransmission royalty, Internet retransmitters are again in the clear.
It is interesting to note that when JumpTV submitted a request late last year to the Copyright Board asking that it begin hearings to set an Internet retransmission royalty, broadcasters passed, waiving for now the right to collect royalties. Why? Because broadcasters would prefer to see them shut down.
Indications from the federal government suggest that they may get their wish. A series of potential Copyright Act reforms are quietly circulating among broadcasters and other interested parties. These include changing the definition of a retransmitter under the act to exclude Internet-based retransmitters, or specifying that a retransmitter is a cable-like service.
While a change to the law may be necessary, targeting Internet firms is not the answer. The bedrock of the law for years has been technological neutrality -- the premise that the law should not distinguish between technologies since doing so often leaves the law outdated when technology changes.
At a time when the boundaries between traditional broadcasters, cable operators and Internet companies are disappearing, an Internet-specific provision would violate the basic tenet of neutrality.
A more appropriate approach would be to add a condition that all retransmitters, including Internet and satellite operators, take steps to ensure their signal is not available outside Canada. Such a provision would ensure technological neutrality, while placing the onus on Internet retransmitters to ensure they don't land in U.S. court, which could lead to criticism that Canada is a haven for copyright piracy.
While some may claim that Internet retransmitters can't currently limit their signals to Canada, that argument is short-sighted. Technology may provide the power to direct Internet signals to specific geographic locations sooner than we think. We should ensure that our laws are not left behind when that technology arrives.
Michael Geist is a law professor at the University of Ottawa Law School and director of e-commerce law at the law firm Goodmans LLP.
mgeist@uottawa.ca
