Intellectual Property

Government needs to take action on broadcast piracy: Fisher

By Tony Poland, AdvocateDaily.com Associate Editor

It’s time the government stepped in to stop the piracy responsible for the “constant erosion” of the broadcast and entertainment industries, says Toronto intellectual property lawyer Kevin Fisher.

Fisher, a partner with Gardiner Roberts LLP, says tough laws are needed because of the difficulties broadcasters face in stemming the tide of illegal streaming.

“At the end of the day, there’s going to have to be some kind of legislative change to level the playing field for the rights holders because it’s just simply unsustainable to sue everybody out there,” he tells AdvocateDaily.com. “The appetite for legislative change doesn’t seem to be there. I’ve been advocating for this for a really long time.

“The penalties now in place are not strong enough to really get anybody’s attention and stop them from doing what they’re doing.”

Fisher says it’s not just a matter of protecting the broadcast industry. Failing to clamp down on piracy is also costing the government in the long run, he says.

“I don’t understand why there isn’t more political attention and pressure put on this problem,” Fisher says. “It’s costing millions and perhaps billions of dollars in revenue, and that means millions of dollars in tax revenue and that translates into real jobs.”

He says for the average consumer, illegal streaming can appear to be a much better alternative to paying cable bills.

“People believe they’re saving money whenever they do this, so they perhaps resent the governmental intrusion,” Fisher says. “But they are not looking at the entire problem.”

He says it costs money to produce programming.

“The rights holder gets paid for what they do, and if they make a reasonable return, then they’ll keep doing it,” Fisher says.

Over the years, consumers have demanded more choice and better production values, he notes.

“If you watch an old game, you’ll see they put nothing in that production quality,” Fisher says. “Now, for example, you can see an NFL game, and they might have 20 or 30 cameras for the broadcast. That is a whole lot of infrastructure.”

Fisher explains that while rights holders will invest in their product to attract more viewers, they are being thwarted by those who pirate their broadcasts.

“Consumers are getting more and more choice and higher production. There’s a smorgasbord of options, and someone has to pay for that,” he says. “A lot of money was being put into sports by a number of these broadcasters because it was a way to keep people subscribing to their particular service.”

Fisher says ongoing innovations have made live streaming much easier and more prevalent, especially when it comes to sports programming.

“Streaming is turning out to be a much more difficult problem because there are so many ways in which these particular pirates can do it,” he says. “Sports was essential for keeping some of the broadcasters alive because people had to maintain their subscriptions since the only time you really want to watch a game is if it is live. However, once you were able to start getting that programming in real-time through streaming services, that advantage started to erode.”

While it may seem like a problem for only the right holders, Fisher warns the trickle-down effect has much broader implications.

He says rights holders could be forced to invest less in broadcasts, meaning less choice and lower quality for the viewer until there is far less to pirate.

He says if broadcasters are limited in what they can pay for rights to games, that also affects what sports teams can offer its athletes. Even funding for amateur sports could take a hit, Fisher says.

“It’s a serious problem,” he says. “The rights holders have to be able to do something about illegal streaming. If not, there will be less investment into those particular things that people want, and broadcasters will have to narrow what they do.”

Fisher says the “entire compensation model is on shaky ground right now, and it’s been chipped away pretty significantly during the past five years.” Without legislative change, the damage could be irreparable, he says.

“All these things, you would think, should put pressure on the government to look at this issue more closely and work with the industry and stakeholders to come up with more tools that they can use,” Fisher says.

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