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    Canadian Broadcasters Seek Overhaul of Radio Copyright Fees Post-C-11 & Fair Dealing Decisions

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    Tuesday November 20, 2012
    The Canadian Association of Broadcasters has applied to the Copyright Board of Canada for a radical overhaul of the current fees paid by radio stations for commercial radio reproduction of music. The CAB argues that in light of copyright reforms in Bill C-11 and the Supreme Court of Canada's rulings on fair dealing, there is no legal basis for several tariffs proposed by CMRRA-SODRAC (CSI), AVLA, and ACTRA and that the rate on earlier approved tariffs should be significantly reduced.

    The CAB position on the impact of the law is that:

    The result of the changes to the Copyright Act made by the Copyright Modernization Act, when combined with the fair dealing right as applied in ESA, is to eliminate or significantly reduce the liability of radio broadcasters for the reproductions made by them in the course of their broadcasting activities. Even the reproduction collectives agree that the legislative changes alone will eliminate most liability of radio broadcasters for reproductions of music. 


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    Canadian Broadcasters and BDUs: Can They Compete With "Free"?

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    Tuesday May 24, 2011
    Earlier this month, Bell and Quebecor, two giants in the Canadian broadcasting and telecom landscape, became embroiled in a dispute over Sun News Network, the recently launched all-news network. At first glance, the dispute appeared to be little more than a typical commercial fight over how much Bell should pay to Quebecor to carry the Sun News Network on its satellite television package. When the parties were unable to reach agreement, Bell removed Sun News Network, leaving a placeholder message indicating "the channel has been taken down at the request of the owners of Sun News Network."

    While the dispute is now before the Canadian Radio-television and Telecommunications Commission - Quebecor claims Bell is violating the legal requirement against "undue preferences"- more interesting is Bell’s claim about the value of Sun News Network signal.

    According to Mirko Bibic, senior vice-president of regulatory affairs at Bell Canada, the market value of Sun News Network is zero because Quebecor makes the signal available free over-the-air in Toronto and is currently streaming it free on the Internet. Given the free access, Bell maintains that the signal no longer has a market value.

    My weekly technology law column (Toronto Star version, homepage version) notes Bibic's comment may be posturing for negotiation purposes, but it highlights the larger problem for Canadian broadcasters and broadcast distributors such as cable and satellite providers.


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    Canadian Broadcasters and BDUs: Can They Compete With "Free"?

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    Tuesday May 24, 2011
    Appeared in the Toronto Star on May 21, 2011 as Can Canadian Broadcasters Compete With Free?

    Earlier this month, Bell and Quebecor, two giants in the Canadian broadcasting and telecom landscape, became embroiled in a dispute over Sun News Network, the recently launched all-news network. At first glance, the dispute appeared to be little more than a typical commercial fight over how much Bell should pay to Quebecor to carry the Sun News channel on its satellite television package. When the parties were unable to reach agreement, Bell removed Sun News Network, leaving a placeholder message indicating "the channel has been taken down at the request of the owners of Sun News Network."

    While the dispute is now before the Canadian Radio-television and Telecommunications Commission - Quebecor claims Bell is violating the legal requirement against "undue preferences"- more interesting is Bell’s claim about the value of Sun News Network signal.

    According to Mirko Bibic, senior vice-president of regulatory affairs at Bell Canada, the market value of Sun News Network is zero because Quebecor makes the signal available free over-the-air in Toronto and is currently streaming it free on the Internet. Given the free access, Bell maintains that the signal no longer has a market value.

    Bibic's comment may be posturing for negotiation purposes, but it highlights the larger problem for Canadian broadcasters and broadcast distributors such as cable and satellite providers.

    The reality of the current environment is that all broadcasters must compete with free. Free streaming has become so common that devices such as the Boxee have popped up to offer users a seemingly unlimited array of legal on-demand television programs all streamed via the Internet. Indeed, if the value associated with broadcasts is directly correlated to its free availability online, a growing percentage of broadcaster content has no market value.

    The implications for Canadian broadcasters are significant since their ongoing fight for a fee-for-carriage (or value-for-signal) is premised on the notion that their broadcasts have value, independent of their availability on other platforms.

    Moreover, Canadian broadcasters continue to rely on foreign (primarily U.S.) content as their most profitable and high profile programming. Given the shift toward online streaming, it is only a matter of time before U.S. rights holders retain their Internet rights to stream content on a global basis. When that happens, Canadian broadcasters will be left vying for less valuable broadcast-only rights.

    The situation is little better for Canada's broadcast distributors who view streaming alternatives with growing trepidation. Free online streaming, when combined with over-the-top video services such as Netflix or new video rental services from YouTube, provides an increasingly viable, low-cost alternative to traditional cable or satellite television services.

    The Internet based streams effectively reduce the value of a cable or satellite television subscription since much of what is now offered through those services is, by Bell's own definition, of no market value.

    Claims that broadcast versions of free streamed programs have no market value may be an exaggeration, but there is a harsh truth in the reality that Internet streaming is having a disruptive effect on both Canadian broadcasters and broadcast distributors.  Given these emerging challenges and the vertically integrated market in which Canadian broadcasters, broadcast distributors, and Internet providers are often part of the same corporate family, the backlash is likely to be fierce.

    Internet providers already deploy usage based billing schemes to increase the cost of free Internet streaming by hiking the price of Internet access. On the regulatory front, there is the growing push to increase the costs to companies that stream content by imposing broadcast-like regulations.

    These moves may create new challenges for online alternatives, but they will not solve the long-term broadcaster and broadcast distributor problems of relying on programs that by their own admission faces diminishing market value.

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.


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    Canadian Broadcasters Say C-32 Needed to Save Local Radio

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    Wednesday March 02, 2011
    Last year, Canadian broadcasters launched a major public campaign to "Save Local TV", which was their effort to rally support for new fees for retransmission of local television signals. The Federal Court of Appeal ruled this week that the CRTC has the legal power to authorize networks to negotiate to be paid for carrying stations, though the recent convergence in the marketplace may render the entire issue moot.

    Interestingly, Canadian radio broadcasters are now using the same strategy as part of their support for Bill C-32. A new campaign - isupportmylocalradio.ca - has been launched complete with radio ads and a webpage. The goal of the campaign is to express support for Bill C-32, particularly the reforms that will save radio broadcasters tens of millions of dollars. The claims mirror those in the fee-for-carriage campaign - "Local radio in Canada may be threatened if Bill C-32 is not passed as introduced by the Government. This much needed Bill may fail because the Liberal Party wants an amendment that would have local radio stations send money to big recording companies outside Canada." The broadcasters appear before the C-32 committee on Thursday.
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