regulation of internet commerce
class eight - january 16, 2008
professor michael geist
university of ottawa, faculty of law
special guest appearance by:
Namir Anani
CRTC

Copyright & P2P - U.S.
• Sony Betamax (1984) -- focus on substantial non-infringing use
• Napster - District Court
• Court holds company responsible - says only substantial and commercially significant use is
unauthorized copying of copyrighted music
• Napster - 9th Circuit Court of Appeals
• Overturns on non-infringement issue -- must look to current and future uses
• Napster liable where (1) copyright holder provides specific info on infringing material, (2)
capability to block, and (3) fails to do so.
• Grokster - District Court & 9th Circuit
• No contributory infringement -- the technological difference
• Grokster - USSC
• Develop inducement standard

Copyright & P2P - Canada
• BMG v. Doe
• Privacy
• Copyright issues
• Private copying
• Monetizing P2P
– Songwriters Association of Canada
– Canadian Music Creators Coalition

looking ahead
• Locks?
• Levies?
• New Business models?

1998-99 CRTC New Media Hearings
• First major hearings into the role of the CRTC and new
media/Internet regulation
• Relatively early days - some advocates for strong
regulatory involvement; majority argue for hands-off
approach (for both policy and practical reasons)
• Over 1,000 contributions, online forum held
• U.S. had attempted to regulate “obscene content” -
Communications Decency Act

1998-99 CRTC New Media Hearings
• Can’t vs. Won’t - CRTC decides not to regulate (but not
because it can’t)
• Text and graphic transmissions - alphanumeric text outside
CRTC mandate
• Streaming webcasts and audiocasts - broadcasting (can be
regulated) but no regulation required (insignificant)
– “will not contribute in a material manner to the implementation of
the policy objectives set out in section 3(1) of the Act.”

1998-99 CRTC New Media Hearings
• December 1999 exemption order --
“Commission exempts persons who carry on, in whole or in part in
Canada, broadcasting undertakings of the class consisting of new
media broadcasting undertakings, from any or all of the requirements
of Part II of the Act...New media broadcasting undertakings provide
broadcasting services delivered and accessed over the Internet…”

iCraveTV - Convergence of the TV & PC
• Debut November 1999 - 15 channels
• Immediate response from broadcasters & content creators
• Injunction in January 2000 (Super Bowl Sunday)
• Settlement on February 2000

iCraveTV - Convergence of the TV & PC
• Capture signal, digitize, & stream
• User accesses via Real Player at 56k
• Access depends upon 3 stage process
• Area code
• 2 clickwrap agreements
• TV on 2-inch screen with streamed ad below

iCraveTV - Convergence of the TV & PC

iCraveTV - Pirate or Pioneer
• U.S. reaction is swift -- iCrave a pirate that must
be stopped
• DMCA appears applicable
• Canadian reaction more muted -- legal issues more
uncertain
• Two laws applicable - Broadcasting Act &
Copyright Act

iCraveTV - Pirate or Pioneer
• Consistent with longtime policy
• 1970s - support development of cable
industry
• 1980s - FTA yields statutory royalty
scheme

iCraveTV - Pirate or Pioneer
• Copyright Act - s.31(2) --
It is not an infringement of copyright to communicate to the public by
telecommunication any literary, dramatic, musical, or artistic work if:
1. the communication is a retransmission of a local or distant signal;
2. the retransmission is lawful under the Broadcasting Act;
3. the signal is transmitted simultaneously and in its entirety...; and
4. in the case of retransmission of a distant signal, the re-transmitter has paid any
royalties...fixed under this Act.

iCraveTV - Pirate or Pioneer
• Viewed within the prism of CRTC policy (1983) -
“The Commission recognizes that in certain circumstances at the local
exhibition phase, various problems may arise related to the issue of
potential copyright infringement and the associated issue of
‘broadcaster consent’. The Commission expects the parties involved
to take steps to make such contractual or other arrangements as
may be necessary in such circumstances.”

iCraveTV - Pirate or Pioneer
• First requirement -- retransmit local or
distant signal
• No problem -- signal a retransmission of
signals via antennae

iCraveTV - Pirate or Pioneer
• Second requirement -- comply with
Broadcasting Act
• No problem -- December 1999 exemption
reads like it was written for iCraveTV

iCraveTV - Pirate or Pioneer
• Third requirement -- retransmit
simultaneously & in its entirety
• Several possible problems
• Digitization of signal
• Omission of closed captioning
• Advertising signal

iCraveTV - Pirate or Pioneer
• Fourth requirement -- Pay applicable
royalties
• No problem -- statute worded that only pay
established royalty & no Internet royalty
• iCraveTV applies for royalty hearing in
November - opposed by broadcasters

iCraveTV - Pirate or Pioneer
• U.S. court finds against iCraveTV
• Company shuts down - can’t risk liability
• Canadian issue never makes it court
• Government amends the law
– territorial limitation/frames
– bill c-11 -- total exclusion
– crtc -- stays out of the battle
• JumpTV

what’s changed?

technology

user generated and
new media content

broadcasters

tv

tv

tv

tv

new broadcast
distribution

new un/authorized
distribution

today’s reality

where does crtc fit in?