Regulations Prescribing Networks (Copyright Act) (SOR/99-348)

REGULATORY IMPACT ANALYSIS STATEMENTi (This statement is not part of the Regulations.)

Description

Bill C-32, An Act to amend the Copyright Act, received Royal Assent on April 25, 1997. Among the measures put in place by this bill are new rights for performers and sound recording makers as well as exceptions for non-profit schools, libraries, archives and museums.

There are also two exceptions which take into account the need of both radio and television broadcasters to make temporary copies (i.e., "ephemeral recordings") of performances so as to facilitate programming and broadcasting operations. Without these exceptions, broadcasters would first need to obtain the permission of the copyright owner in respect of each copyrighted work captured on the ephemeral recording. The exceptions are subject to certain conditions and limitations. For example, it is a condition of both exceptions that broadcasters destroy each ephemeral recording within thirty days of its making, unless the copyright owner consents otherwise. Broadcasters must keep a record of the date(s) of both the making and destruction of each ephemeral recording, including any other information prescribed by Regulation. Further, the exceptions are not available in respect of copyrighted works for which a collective society of copyright owners licenses the making of ephemeral recordings.

(Note: The text which follows refers to "programming undertakings" and "broadcasting undertakings". These terms include entities such as television and radio stations. Their specific legal definitions are, however, set out in the Copyright Act.)

In particular:

(a) section 30.8 of the Copyright Act allows a programming undertaking to make, for the purpose of deferred broadcasting, an ephemeral recording of a live performance which incorporates copyrighted works. This section also allows a programming undertaking to share, without having to obtain the permission of the copyright owners, its ephemeral recordings with other broadcasting undertakings, provided that both undertakings belong to the same "network", as prescribed by Regulation;

(b) section 30.9 of the Copyright Act allows a broadcasting undertaking to reproduce a sound recording of a copyrighted work in a format which facilitates the delivery of programming.

These Regulations prescribe networks for the purposes of section 30.8. Networks licensed pursuant to the Broadcasting Act are prescribed, as are any group of stations that are owned by the same person or group of persons and that have either a practice of common programming or an agreement by which they share programs. In other words, groups of stations that bear a strong resemblance to networks licensed by the Canadian Radiotelevision and Telecommunications Commission are also covered.

Alternatives

Networks must be prescribed by Regulation before section 30.8 of the Copyright Act may be brought into force. There are no alternatives in this respect. There is no overlap or duplication. The federal government has exclusive jurisdiction in this matter.

Benefits and Costs

Regulations prescribing networks will benefit certain programming and broadcasting undertakings. The Regulations are required to enable the sharing of ephemeral recordings within a network, which would otherwise not be possible. They do this by allowing broadcasting undertakings within a prescribed network to make and use a temporary copy of an ephemeral recording originally made by a programming undertaking belonging to the same network.

There will be no additional costs to the Government due to the implementation of these Regulations.

Consultation

The following associations were consulted before and during the regulation-drafting process: the Association canadienne de la radio et de la télévision de langue française (ACRTF), the Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ), the Canadian Association of Broadcasters (CAB), the Canadian Broadcasting Corporation (CBC), the Canadian Cable Television Association (CCTA), the Canadian Music Publishers Association (CMPA), the Canadian Recording Industry Association (CRIA), and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC).

During these consultations, the departments received many comments and proposals which were considered in the development of a version that was prepublished in the Canada Gazette, Part I on January 30, 1999. This version included provisions specifying other information for record-keeping purposes, as well as a provision prescribing networks.

Following prepublication, comments were received from the CAB, the CCTA, the CMPA, CRIA, and the Canadian Independent Record Producers Association (CIRPA).

The main comments relate to "section 3" of the Regulations, as previously prepublished. This provision established the record-keeping requirements in respect of ephemeral recordings made pursuant to section 30.8. Associations representing copyright owners were very concerned that section 3 had been structured such that some of the requirements could be evaded and, on this basis, could not accept the Regulations. However, all of the alternatives discussed either contained elements that were unacceptable to some stakeholders, or, per the advice of the Department of Justice, were not within the regulation-making power set out in the Act.

Accordingly, the additional record-keeping requirements have been removed from the Regulations so as to allow the stakeholders an opportunity to reach a consensus amongst themselves without unduly delaying implementation of the remaining provisions of Bill C- 32.

With respect to networks, comments were received concerning the requirement that stations falling within a network must be owned by the same person or group of persons. Certain stakeholders felt that this requirement is too restrictive. However, a wider designation would not be consistent with federal government policy, as expressed in our laws and in the international treaties to which Canada is a member. The relevant stakeholders were informed of these difficulties and support the implementation of this part of the Regulations.

Certain changes were made to the networks provisions to satisfy the Department of Justice requirements; but, care has been taken to reflect the original policy intent.

Given the extensive changes, the Regulations were prepublished for a second time in the Canada Gazette, Part I, on July 31, 1999 for a period of fifteen days.

Following the July prepublication, written comments were received from CRIA and the CAB. The CAB supports the latest version and CRIA offers no comments.

Advance notice concerning prescribed networks was entered in the Report on Plans and Priorities for the Fiscal Year 1998-99.

Compliance and Enforcement

The Regulations merely prescribe networks.

i Published in the Canada Gazette Part II on September 15, 1999.