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Intellectual Property

Traditional broadcasters squeezed between online pirates, new media

Traditional broadcasters are feeling the squeeze from both illegal piracy and legal over-the-top media services online, says Toronto intellectual property litigator Kevin Fisher.

At a recent Parliamentary hearing, Rob Malcolmson, a senior executive at Bell Canada Enterprises Inc., suggested Canada should use its ongoing NAFTA renegotiation talks to push for the criminalization of copyright infringement and the formation of a website blocking system aimed at the most egregious online pirates.    

Malcolmson’s presentation to lawmakers suggested Canada should “create a criminal provision for any infringement of copyright, including facilitating and enabling piracy where it's undertaken for a commercial purpose.”

In addition, he said “blocking access to piracy” was a better option than “coming up with new technological measures.”

“How do you do that? We would like to see measures put in place whereby all internet service providers are required to block consumer access to pirated websites. In our view, that is the only way to stop it. So you would mandate all ISPs across the country to essentially block access to a black list of egregious piracy sites. That would be job number one,” he said, suggesting a third-party regulator, such as the Canadian Radio-television and Telecommunications Commission (CRTC) could play a role, to help prevent “ISPs acting as censors." 

Fisher, a partner with Gardiner Roberts LLP, tells AdvocateDaily.com that the telecom giant may not have expected its eye-catching proposals to garner widespread support.

“I think Bell is trying to be the canary in the coal mine so that they can bring some attention to how big the problem of piracy has become; it’s rampant,” he says. “I agree that something needs to be done, but it’s not something Bell can combat on its own. They need to get some help from Parliament in the form of legislative changes.”  

Fisher, who has acted for a number of cases involving rights to live sports programming, says piracy is a particular problem in that area.

“For traditional broadcasters, live sports is the tether that is holding people to their cable and satellite subscriptions. We see people pay big money for rights, but the returns on those investments are getting more questionable due to the amount of illegal piracy,” he says.

The pressure from illegal actors is matched by emerging legitimate online players in the media world, such as Netflix and Amazon’s Prime Video service, Fisher says.  

“They have a great deal of money in reserve to buy and produce content, and meanwhile, the Bells and Rogers of the world are sandwiched in the middle,” he says.

Fisher says he would like to see the CRTC take a more active role in the regulation of internet broadcasters to help level the playing field for domestic broadcasters, who must adhere to rules about Canadian content and other restrictions on their operations.

However, he says he’s pessimistic about that outcome, considering the CRTC’s previous pronouncements on the subject.

In the meantime, Fisher says he understands why Bell would take such a hard line in public on piracy

“Combatting piracy is the first priority because if you can’t control the market, you don’t have one,” Fisher says.

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