A 2012 acknowledged the growth of OTT services, but recommended that Canadian broadcasters respond by moving aggressively into the OTT space rather than creating a new regulatory category for internet media. Rogers and Shaw attempted this in the past few years with their OTT service Shomi, which has since failed, but Bell’s CraveTV .

At the end of 2016, Netflix and Amazon Prime announced that they were expanding their service into virtually every country in the world, with Netflix in 190 countries and Amazon Prime in 200. With OTT services now becoming truly global in scope, how will Netflix and Amazon simultaneously deal with the media regulations of every government in the world and how can Canadian content producers and distributors continue to compete?

by Brian Barrett, a senior writer at Wired and former Editor in Chief at Gawker Media answers the first question with two words: original content. If OTT services invest in creating their own shows, a significant amount of work around licensing the rights to stream movies and shows by other producers eventually gets cut out as more and more content is added directly by the provider. A previous example is Comcast’s in 2009 where a major broadcaster bought a major content producer to gain greater control of the media supply chain.

Over the past 5 years Netflix and Amazon have done just this, growing their library of original TV shows and movies. Bell has begun to produce its own shows through CraveTV, signalling an adoption of this model in Canada. The effect of a distributor owning its own content is that it makes licensing unnecessary, as a single entity now owns the rights to the content in perpetuity and therefore can distribute them without need for a license. This saves time and money and simplifies the supply chain of delivering content but it also signals a major shift that concerns media creators and distributors around the world.

If more and more content that people want to consume is produced by OTT distributors, then the ability of Canadian media companies to get licences for in-demand shows becomes far more difficult and will cut them out of the supply chain. Bell currently has licences for HBO and Showtime, two popular US content producers, but both have their own small OTT services, HBOgo and Showtime Anytime. The first is currently available in Canada with a (a subsidiary of Bell), the second is . If the big OTT’s gamble on content creation pays off, these content creators may try to grow their own OTT presence globally rather than keep selling licences.

While it is clear that Canadian distributors need to focus on content creation, it is also important that this content be marketable outside Canada. The federal government has affirmed a commitment to move from “focusing on growing the domestic market” to “capturing a greater share of global markets” in a recently commissioned Heritage Canada titled “Canadian Culture in a Digital World”. Heritage Minister Mélanie Joly told the in 2016 that the biggest challenge for content producers is “finding better ways to export the material on digital platforms around the world”. The article noted such a review of CanCon rules is a major upheaval not seen in 25 years.

The move to global OTT services signals an increase in demand for high-quality content and a reduction in the barriers to distributing content to other markets. Canada is well positioned to profit from this change, if it allows it creators and distributors the freedom to create shows that are compelling to global audience, not just a Canadian one.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post As Netflix Goes Global, CanCon Must Broaden Its Appeal appeared first on IPOsgoode.

Agar began by expanding on his default indifference stating it is a frequent response to the entitlement displayed by people who often call the show facetiously promising that they would be doing Agar a favour by coming onto his show when in fact it is they who want his help. Agar expressed how this entitlement mentality—which he mused was likely a generational-effect from oft-received consolation trophies— fails to consider the abundant competition for media time.

The rest of Agar’s talk illuminated how to leverage media to overcome intense competition for airtime. He used several examples to differentiate the successful stories from the unsuccessful, starting with the successful: star of Dragon’s Den Kevin O’Leary and his surprising run for Tory leadership, which was as being neck-and-neck with that of Peter MacKay.

According to Agar, the key was not found in this quote often attributed (though unverified) to Theodore Roosevelt: “[n]obody cares how much you know until they know how much you care”; rather, it was found in Agar’s adjustment to that quote: “most people don’t care until they find out what’s in it for them”. To cater to gatekeepers’ interests in order to get a message out, Agar emphasized that brief, efficiently told stories—stories than can be told in one sentence—are most appealing to those gatekeepers not just because it makes their job easy, but because the story will be easily communicable to their audiences.

Further, if a brief one-line summary of an issue provokes more questions, it will be more likely to incite callers, on-air debate, and will be less likely to result in dead-air. Agar’s first example of a powerful description was the lead line: “people living in high-rise buildings in a city have less chance of surviving a heart attack”. This line tells a story entirely but also provokes immediate more questions (such as why?), making it vastly superior to those one sentence stories which do not, like Agar’s example of a botanical fair’s announcement and description.

Agar had advice beyond perfecting the quality of a pitch, also focusing on the importance of the degree of research and knowledge on the proposed subject. He pointed out that getting a message out through the gatekeeper does not guarantee the benefits generally yielded by the broadcast of that message. To illustrate his point, he recounted two disastrous stories of broadcast subjects: one who could not answer questions about her chosen topic (a school trustee who did not know why hypothetical marijuana retailers should not be in close proximity to a school even though LCBOs can be); and, another who was uninformed on her chosen topic (a teacher asking the public to “walk a mile in her shoes” who did not know taxpayers subsidized her salary).

Finally, Agar honed in on some other important factors which could contribute to getting him (and his audience) to care about you, including: putting the listener first, being assertive, being creative, and, seeing opportunities and capitalizing on them.

Though the talk focused on radio broadcasting, Agar tied his message back to the law and how to apply storytelling in the legal profession by relating the concepts he discussed to client advocacy and professional self-branding. Doubtlessly, the media can play a profound role in the former context, whether soliciting the media’s help in telling the story the way you want to tell it, or whether the media comes to you first, leaving you no choice in the matter. Also, it is unquestionable that lawyers in today’s climate can leverage the media to get the word of their services out to the public. As a law student, storytelling is a major component of the non-stop application processes I began the day I applied to law school, and Agar’s advice will no doubt stick with me long into my legal practice.

Jordan Fine is the IPilogue Content/Publication Editor and a JD Candidate at Osgoode Hall Law School.

The post IP Osgoode Speaks Series featuring Jerry Agar: I Don’t Care About You appeared first on IPOsgoode.

When Rogers locked up a 12-year, $5.2 billion dollar deal to broadcast NHL hockey in Canada in 2013, CBC was forced to launch what some sources are reportedly calling a  featuring layoffs of over 2000 employees. Despite these changes, CBC promised Canadians some of coverage of the Toronto 2015 Pan Am Games across television, online and mobile platforms, in both English and French. This article provides an overview of the key legal issues impacting CBC's ability to fulfill its promise to the Canadian public.

Broadcasters' Rights

Advances in communication technologies have revolutionized the ways in which billions of people around the world take part in major sporting events. It is imperative that the rights of individuals to remotely view the events is balanced with the legal rights of the host broadcaster.

According to the World Intellectual Property Organization (WIPO), the sale of broadcasting and media rights is now the for most sports organizations. Meanwhile, the royalties that broadcasters like CBC earn from selling their exclusive footage to other media outlets is what allows them to invest in the expensive technical work required to provide top-quality coverage.

For the Pan Am Games, CBC has already sold broadcasting rights to a number of different broadcasting companies, including: ESPN (USA), ESPN Deportes (USA), TyC (Argentina), Claro Sports (Mexico) and Rede Record (Brazil). Through these broadcasters alone, in the Americas.

Retransmission of the Games

Retransmission occurs when off-air broadcasts are picked up by a transmitter, and sold as part of a package to subscribers outside that broadcaster's reach. For the Games, CBC has the right to authorize or prohibit rebroadcasting, fixation and reproduction of their broadcasts. The Copyright Board of Canada determines the royalty rates that these re-transmitters must pay to use their broadcasts.

Royalty rates are calculated based on a formula that is largely based on TV audience ratings, with a new tariff being set every 5 years. The most recent tariff negotiations, which are outlined in detail in the , were received as a major victory for rights holders, who the rate per subscriber per month and CRC's share of the total Canadian retransmission royalties. These changes represent a combined $3 million more annually for broadcasters, in comparison to 2009.

Growing Piracy "Contaminating" Live Sports

In addition to the broadcasters showing the Games, there will also be many illegal peer-to-peer streams. In recent years, these streaming sites had improved to include HD content, interactive program listings (also known as EPGs) and other attractive features such as live social media updates. This has especially been a problem for live sporting events, considering the pirate does not need to pay for the bandwidth that enabled HD resolution, allowing these sites to compete with legal offers for 'free'.

Although host broadcasters could try to go after every individual they believe to be infringing their copyrights, this strategy can be disastrous from a public relations standpoint (if the reported fallout from the  from ten years ago are any indication). Even if done for legitimate reasons, suing one's customers may be a dangerous business model. Additionally, with reporting that the number of illegal peer-to-peer sites has doubled every six months for the past two years, viewers have countless options and little reason to stop streaming.

One Possible Solution?

Some suggest that technology itself might offer a way to curb the piracy issues that currently affect broadcasters. Imagine if something similar to the  (which is designed to listen to the environment of the user), could be integrated into live streaming apps to detect streams that potentially infringe copyright. However, the terms of use would have to be revised to include consent to this type of monitoring while the app is in use, which raises a number of additional privacy concerns.

What is certain is that illegal live streams are finding ways for sports fans to circumvent the offerings of public broadcasters, and these Pan Am Games will be no different.

The post CBC vs. The World: Let the Broadcasting Games Begin appeared first on IPOsgoode.

Background
CBC’s French division Radio-Canada rolled out its “Ici” branding to , ranging from mocking to anger, because the re-marketing downplayed Radio-Canada’s main name and state broadcaster status. In fact, the new brand largely eradicated the Radio-Canada affiliation.

Radio-Canada quickly of Heritage Minister James Moore, whose portfolio responsibility includes Radio-Canada. The new, new brand will clearly include both “Ici” and “Radio-Canada”.

"They made the right decision in going back," Moore told news outlets after the announcement. "Maintaining a clearly Canadian brand for Canada's broadcaster is the right choice."

The marketing misstep even made it .

Legal implications
But there’s a second legal layer to the problematic re-branding. Montreal broadcaster Sam Norouzi obtained a licence from the (CRTC) for the multi-language channel “ICI – International Channel/Canal international” . Similarly, Norouzi legally registered the trade-mark “Ici” with the (CIPO) and received an official CIPO trade-mark certificate in . Norouzi originally planned to to launch his channel this coming fall.

But there are holes in Norouzi’s legal argument, as the Montreal Gazette. Firstly, a trade-mark in Canadian law. Secondly, a trade-mark may be expunged through sections and of the up to five years after CIPO registration. Thirdly, a paperwork technicality – wherein Norouzi informed CIPO in August 2012 that he had already started using the name when in fact the station had not yet launched – may also leave him legally vulnerable.

“If you file a faulty or untrue declaration of use, it can invalidate the entire registration,” Lauzon told the Gazette. “If he had waited, he would be in a much better position.”

Spokesperson Marc Pichette states Radio-Canada has a history of “Ici” use akin to an unregistered trade-mark dating back to the 1930s. The broadcaster’s official internal magazine was called “Ici Radio Canada” from 1966 to 1985 and Radio-Canada registered a semi-similar “Éditions Ici Radio-Canada” trade-mark in 1969 for a failed publishing wing.

“It is more or less universally known in the French market and has, in fact, become almost as iconic an identifier as Radio-Canada itself,” .

Radio-Canada has not requested an injunction, but has requested that Norouzi stop using “Ici” and destroy all materials with the name, or else pay damages “.” No court date has been set.

Analysis and opinion
It sounds like Radio-Canada has a decent case when you combine the historical use of “Ici” with the yet-unmet statute of limitations for federal trade-mark expungement.

That said, it is my opinion that Radio-Canada is still making a mistake.

As I’ve argued , sometimes exercising a legal right doesn’t translate well into the court of public opinion. And the court of public opinion is an arena that Radio-Canada cannot ignore, especially on the heels of the re-branding outcry.

Canadians, the Minister of Heritage, and the broadcaster itself have loudly declared that “Radio-Canada” is the brand, which would make “Ici” more a slogan than anything else. Considering this, I propose that there is more than enough room in the Quebec market for a Radio-Canada broadcaster with an “Ici” slogan and an ICI broadcaster with or without any additional slogans.

This is particularly true when you consider market segmentation. ICI, the broadcaster, intends to focus on "allophone" content – primarily non-English, non-French programming in more than a dozen different languages. This is a market entirely discrete from Radio-Canada’s content, which is exclusively French.

At its root, a trade-mark is a tool that provides legal rights to the holder against others who seek to diminish the value of the brand trade-marked by passing themselves off as a similar or related entity.

I don’t believe the “Ici” slogan is closely affiliated enough with the Radio-Canada brand to warrant copycats. Radio-Canada’s use of “Ici” has been inconsistent, as indicated by Pichette’s dated references. I lived in Quebec for five years and have consumed much Radio-Canada content throughout my life. At no point did I feel “Ici” was a core part of the branding.

And I don’t believe ICI is attempting to be a copycat. ICI stands as an acronym for a full channel name that embodies its unique multi-language offering; this is indicative of a good faith trade-mark registration.

Radio-Canada may win their expungement case, but not without accumulating industry enemies and negative public sentiment during an already tumultuous time. Ici Radio-Canada Télé and ICI – International Channel/Canal international can live in harmony. And so they should.

The post CBC’s “Ici” Rebranding Turns From PR Debacle to Legal One appeared first on IPOsgoode.

Key Messages

There were three messages intertwined throughout Blais' presentation. He first discussed the CRTC having the courage to both step up and step back in regulating. He elaborated that it was the role of the Commission to intervene when market forces were insufficient to accomplish objectives in the public interest. With respect to telecommunications, he highlighted the recent release of the  as a need to interject in what he sees as a largely unregulated wireless market. He also discussed the need to impose conditions on the CBC's broadcasting  to ensure it meets the needs of Canadians, and why Bell's proposed acquisition of Astral Media's assets was in the public interest. Blais then spoke of recent times when the CRTC relaxed regulation, presenting only one example - when minor specialty channels were  from regulation until reaching 200,000 subscribers. He did acknowledge, however, that regulation can sometimes become an end unto itself, and an ineffective instrument only creating needless complexity.

Along with his message of stepping up and stepping back, Blais next discussed the role of public consultation. He cited robust public consultation as an important contributing factor to the successes of both the Wireless Code and CBC's license renewal, while continually being able to balance the opinion of the majority with the needs of the minority. Blais ended his presentation outlining the next public consultation, which will begin this fall, concerning the future of television. He described this as an unprecedented opportunity for the Canadian industry and public, particularly to question the assumptions underlying the CRTC's regulatory policies. This led to his third key message - a recognition that broadcasting has changed and will never be the same. He stated further that the actions of the Commission need to evolve as technology has, in order to ensure the objectives of the Broadcasting Act remain fulfilled.

Positive Steps

It is refreshing to see Blais commenting on the new world the CRTC lives in, and that the one in which the �����Ի��� were born in no longer exists. As YouTube channels proliferate and broadband  is as ubiquitous as  TV, Blais also understands the focus must shift from protection to promotion. Quotas for Canadian content and cable channel bundling are ineffective policies in an on-demand internet access world. This is underlined by Blais' suggestion of a shift from rules to outcomes, and an overall sentiment that protecting Canadian interests requires a new perspective. It is good to see the chief regulator understand the need to change tactics in the new world to ensure the objectives of these two acts remain relevant. This also highlights Blais' understanding that the new issues challenging the mandate of the CRTC cannot be addressed by an outdated paradigm of thinking.

Future Opportunities

Blais' presentation leaves two major areas of concern. While stating the need to sometimes step back, he was hard pressed to find substantial examples of reducing regulation. Also, he focused heavily on the role of the CBC, particularly in creating creative content to serve the needs of Canadians. Given that the presentation was made to content creators, it was natural for him to focus on the role of regulating the CBC.

There was little discussion, however, that the needs of Canadians could be better served through other mechanisms. While publicly funded content through the �����Ի��� may have been needed in the old world of media production and distribution, there are a myriad of alternatives now available, which seemed to be noticeably lacking in Blais' speech. Barriers to entry have fallen with the rise of the internet and high-quality, low-cost recording hardware and editing software. Producers can now create content at a vastly lower cost, and easily distribute them through avenues such as YouTube and Twitter, which feature built-in monetization systems. While Blais did stress the role of public consultation, he failed to explain why the free market is failing in creating the content Canadians need. He also referred to a statistic of higher conventional television consumption than internet television, but overlooked many other forms of .

Looking Forward

While it was refreshing to see Blais express sentiments about the evolving world of media, it seemed there are still further opportunities for the CRTC to embrace the new world of media. More encouraging was his commitment to public consultation and an input from ordinary Canadians, whom Blais describes as often having extraordinary insights into the industry. We can only hope that this extraordinary insight will come through, and the CRTC can pave a path for Canadian media well beyond the model that has pervaded until now.

Alex Buonassisi is an IPilogue Editor and a JD Candidate at Thompson Rivers University.

The post CRTC Sees New World of Media from Banff Festival appeared first on IPOsgoode.

On January 16, 2011, the Supreme Court heard an appeal in the case of

The appeal arose from the following reference question put by the (CRTC) to the Federal Court of Appeal:

Do retail Internet service providers (ISPs) carry on, in whole or in part, “broadcasting undertakings” subject to the , [S.C. 1991, c. 11 (the Broadcasting Act)] when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?

The terms “broadcasting” and “broadcasting undertaking” are as defined in the Broadcasting Act as amended.

The Federal Court of Appeal heard submissions from two groups. The “Cultural Groups”, consisting of the (ACTRA), the (CMPA), the (DGC), and the (WGC), argued that the question should be answered in the affirmative. This position was opposed by the “ISP Coalition”, including Bell, Cogeco, MTS Allstream, Rogers, and Telus. Shaw Communications also took part with separate counsel.

The question turned on whether ISPs engage in “transmission” in the meaning of the Broadcasting Act.  In its 2010 lower court decision in the same case, the answered the reference question in the negative.  Reading the definition of “broadcasting” together with the purpose and applicability to ISPs of the policy objectives of the Broadcasting Act, the Federal Court of Appeal accepted the argument that ISPs were “utterly ignorant” of the nature of the messages which move through their networks, and could not therefore be “broadcasting undertakings” since they only “provide the mode of transmission”.

At the Supreme Court, , made submissions on behalf of the Appellants, the Cultural Groups. He urged the Court to consider the difference between the activities of providing Internet access, which he argued includes transmitting content, and of acting as a “telecommunications common carrier”, which the defines as owning and operating the underlying “transmission facility” or physical network links through which transmissions are made.  He characterized the ISP Coalition’s and Shaw’s arguments as asserting that content-neutral “passive transmission” is excluded from the Broadcasting Act.

Justices Abella and Rothstein were particularly active in questioning whether an ISP needed to have control over the actual content of a transmission in order to fall under the CRTC’s Broadcasting Act jurisdiction. Chief Justice McLachlin ended the discussion when she asked whether there was any danger that Canada’s Internet landscape could be regulated as heavily as China’s, to which Mr. Heintzman pointed out that the CRTC is mandated to only apply regulations under the Broadcasting Act in a way that fosters freedom of expression, and only when it is necessary to achieve the Act’s policy objectives.

responded on behalf of the ISP Coalition. He emphasized the limited nature of the CRTC’s reference question, that the only issue before the Court involved ISPs “in their role as ISPs”. Mr. Laskin took issue with the concept of “passive transmission”, and argued that Parliament’s vision was apparent, that ISPs fit more comfortably under the Telecommunications Act as “telecommunications common carriers” since they are unable to fulfill most of the Broadcasting Act’s policy objectives.

made submissions on behalf of Shaw, and argued that to answer the question the Court must look to a broader statutory framework which includes the Copyright Act. Under that Act, the Supreme Court previously ruled in the decision that ISPs were content-neutral “Internet intermediaries”, and therefore exempt from civil liability for copyright infringement. Mr. McHaffie suggested that ISPs do not need to be “telecommunications common carriers”, since the entire Telecommunications Act, which does not apply to broadcasting by broadcasting undertakings, operates analogously to the Copyright Act’s civil liability carve-out for content-neutral intermediaries. On the basis of this content-neutrality principle, Mr. McHaffie argued that ISPs must be treated as a single undertaking, whether they are involved in the transmission of audio-visual programs (broadcasting), or any other form of content.

In a brief reply, Mr. Heintzman suggested to the Court that ISPs were capable of furthering the Broadcasting Act’s policy objectives, should the CRTC identify a need for them to do so. He pointed to examples such as Project Cleanfeed Canada.  Project Cleanfeed Canada is a system by which certain ISPs have agreed to block access to foreign child pornography tagged as such by Cybertip.ca

The case is one of considerable complexity, involving a wide array of highly technical defined terms. It remains to be seen what effect the Court’s decision will have on the CRTC’s oversight of broadcasting over the Internet, and on the interpretation of the Broadcasting Act and Telecommunications Act.

The post Supreme Court of Canada Considers "Broadcasting Undertakings" in ACTRA v. Bell appeared first on IPOsgoode.

As previously reported by the IPilogue , the Supreme Court of Canada is not the only national court grappling with the term “communication to the public”. Similar to two of the internet copyright cases earlier this month and reported by the IPilogue , questions related to transmissions of protected content over the internet have also arisen in the United Kingdom.

In the case of ITV v TVCatchup, Justice Floyd of the UK High Court of Justice has returned with a disposing with a series of issues which arose during his initial decision in the case in July and referring a question relating to the definition of “communication to the public” to the European Court of Justice (ECJ). As , TVCatchup is a live-streaming service that allows users to view television broadcasts on their computers, tablets, smartphones, and other internet-capable devices.  The service individually identifies users and then serves them content based on their existing television licence (they can access channels like ITV, Channel Five, and the BBC, but viewers can only receive content that they are legally entitled to watch based on their existing television licence).  TVCatchup funds its operation by showing advertisements before each live stream begins and by “skinning” the stream such that advertisements served by TVCatchup are displayed around the edges of the window displaying the live stream.  It is also important to note that TVCatchup does not alter the original stream, so any advertisements shown by the broadcasters as part of their television transmission are not affected.

Although he had initially planned to refer two questions to the ECJ this past summer, Justice Floyd deferred the case awaiting a ruling in Football Association Premier League v QC Leisure by the ECJ. As a result, the Justice Floyd was able to apply that judgement to TVCatchup and decide an issue related to “reproduction of a substantial part” of films in memory buffers and on screens. Consequently, Justice Floyd is now only referring a single question to the ECJ on “communication to the public”.

Based on his ruling in July, Justice Floyd entertained the idea of using the definition of “communication to the public” from a case called Airfield.  This case was actually a set of joined cases heard by the ECJ ( about the encrypted re-broadcasting of satellite television signals. Following a review of the facts, Justice Floyd ultimately distinguished Airfield from TVCatchup and decided to ask the ECJ the following questions:

"Does the right to authorise or prohibit a "communication to the public of their works by wire or wireless means" in Article 3.1 of the Directive extend to a case where:

1.  Authors authorise the inclusion of their works in a terrestrial free‑to‑air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State;

2.  A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party's server and receive the content of the broadcast by means of an internet stream?

Does it make any difference to the answer to the above question if:

(a) The third party's server allows only a "one‑to‑one" connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber?

(b) The third party's service is funded by advertising which is presented "pre‑roll" (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) or "in‑skin" (i.e. within the frame of the viewing software which displays the received programme on the subscriber's viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?

(c) The intervening organisation is:

(i) providing an alternative service to that of the original broadcaster, thereby acting in competition with the original broadcaster for viewers; or

(ii) acting in competition with the original broadcaster for advertising revenues?”

The ECJ’s response to this question could represent an important precedent in the on-going battle over the transmission of protected content over the internet.

The post "Communication To The Public" Also Hot-Button Issue Across the Pond appeared first on IPOsgoode.