Archive for December 13th, 2011

Undue Intervention: Why the CRTC Got It Wrong on Exclusive Content

The CRTC yesterday issued a ruling involving a Telus complaint over Bell’s exclusive rights over NFL and NHL content for its wireless services and its inability to negotiate similar rights for mobile carriage. The Commission found that Bell gave itself an undue preference contrary to its 2009 new media decision and ordered Bell to take steps to ensure that Telus can access the programming on reasonable terms. While there are dangers of undue preferences in the mobile environment and of unfair behaviour arising from the vertical integration, it is hard to see how this case qualifies.

The CRTC analysis involves a two-step process. First, it considers whether an undertaking has given itself a preference or subjected another person to a disadvantage. If it finds a preference, it moves to a second step to determine whether the preference is undue. Note that the burden of demonstrating that the preference was not undue rests with the undertaking that has granted it.

In this case, the Commission found that Bell granted itself a preference by entering into an exclusive contract for NHL and NFL programming. Note that the NFL programming is not something that Bell produces or otherwise owns. There is also no indication that the Bell’s wireless access to the NFL is linked to similar licenses for its broadcasting properties (Bell says the NFL deal was concluded before its purchase of CTV). If this constitutes a preference, then any exclusive contract will seemingly rise to the level of a preference and the party that enters into it may be faced with the burden of demonstrating that it is not an undue preference (which appears to be precisely what the Commission has in mind).

The Daily Digital Lock Dissenter, Day 50: ACTRA

ACTRA, the Alliance of Canadian Cinema, Television and Radio Artists, is the union of more than 22,000 professional performers working in English-language recorded media in Canada including TV, film, radio and digital media. I have disagreed in the past with several its positions on copyright reform, including one member calling mashups morally wrong and a six-part fix that would remove fair dealing reform. ACTRA’s 2009 national copyright consultation submission supported the use of digital locks, but also recognized the need for limits on the legal protections associated with them including the need to ensure that exceptions and limitations are not lost:

The choice of whether or not to use a TPM in connection with controlling access to a copyright protected work or which restricts copyright protected acts rests with rightsholders. Some will choose to use them, others will not. In accordance with the WIPO Treaties, rightsholders should have recourse against persons who deliberately circumvent their TPMs. By the same token, users who have legal access to a work should not be prevented by TPMs from availing themselves of statutory exceptions or limitations. Moreover, legal protection for TPMs should be subject to privacy, interoperability, and encryption research considerations, for example.

“Stop Making Our Copyright and Digital Laws Worse”

NDP MP and party leadership candidate Romeo Saganash posts a piece in the Huffington Post that expresses concern with the digital lock rules in Bill C-11.