COPYRIGHT REGULATIONS

Local Signal and Distant Signal Regulations

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REGULATIONS
Copyright Act

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REGULATIONS DEFINING LOCAL SIGNAL AND DISTANT SIGNAL FOR THE PURPOSES OF SUBSECTION 28.01(2) OF THE COPYRIGHT ACT

1. These Regulations may be cited as the definition of Local Signal and Distant Signal Regulations.

2. For the purposes of these Regulations,

"area of transmission" means

(a) in respect of a terrestrial television station, the area within the predicted Grade B contour of the station, as determined in accordance with the method set out in the schedule, and the area within a radius of 32 km from that contour;

(b) in respect of a terrestrial F.M. radio station, the area within the predicted 0.5 mV/m field strength contour of the station, as determined in accordance with the method set out in the schedule; and

(c) in respect of a terrestrial A.M. radio station, the area within a radius of 32 km from the principal studio of the station.

3. For the purposes of subsection 28.01(2) of the Copyright Act, as enacted by S.C. 1988, c. 65, s. 63,

(a) "local signal" means,

(i) in respect of the entire service area of a cable retransmission system, the signal of a terrestrial radio or television station the area of transmission of which covers all of that area,

(ii) in respect of a portion of the service area of a cable retransmission system, the signal of a terrestrial radio or television station the area of transmission of which covers all of that portion, and

(iii) in respect of the service area of a terrestrial retransmission system utilizing hertzian waves, the signal of a terrestrial radio or television station the area of transmission of which covers the site of the transmitter of that retransmission system; and

(b) "distant signal" means a signal that is not a local signal.

Height of Antenna above Average Terrain (HAAT)

1. The height of an antenna above average terrain shall be determined on a topographical map by

(a) marking the transmitting site on the map, using the geographical coordinates of the site;

(b) drawing two concentric circles with radii of 3 km and 16 km, respectively, from the transmitting site marked under paragraph (a);

(c) starting at true north, drawing eight radials from the transmitting site at intervals of 45o;

(d) drawing, for each radial, a profile graph for the segment of terrain between 3 km and 16 km from the transmitting site, with the eight profile graphs plotted separately on rectangular coordinate paper, the distance in kilometers as the abscissa and the elevation in meters above mean sea level as the ordinate; the graph reflecting the topography of the terrain;

(e) obtaining the average elevation of the terrain above mean sea level for each segment of terrain between 3 km and 16 km from the transmitting site by

(i) using a planimeter,

(ii) dividing the segment in equal sectors and averaging their respective median elevations, or

(iii) averaging the elevations at a sufficient number of equally spaced points to provide a representation of the terrain; and

(f) obtaining the HAAT for each radial by subtracting the average terrain elevation calculated in accordance with paragraph (e) from the height above mean sea level of the center of radiation of the antenna.

2. (1) For F.M. radio stations, the predicted contour is defined by a field strength of 0.5 mV/m.

(2) For television stations, depending on the channel involved, the predicted Grade B contour is defined by the following field strength:

(a) 47 dB above 1 V/m for channels 2 to 6;

(b) 56 dB above 1 V/m for channels 7 to 13;

(c) 64 dB above 1 V/m for channels 14 to 69.

(3) The HAAT determined in accordance with section 1 shall be ascertained for each radial and the effective radiated power (ERP) shall be ascertained in the plane of maximum radiation (in the case of directional antennas, the ERP value in the direction of each radial shall be used).

(4) The appropriate F(50,50) propagation curves (Tables I to III) shall be used with the HAAT and the ERP ascertained in accordance with subsection (3) to determine the distance from the transmitting site to the contour point on each radial.

(5) The contour points determined under subsection (4) shall be joined by a smooth curve to obtain the contour.

Note: The 40 dB line is the reference line for an effective radiated power (ERP) of 1 kW.

Description

Under section 28.01 of the Copyright Act, as amended by the Canada-United States Free Trade Agreement Implementation Act, the Governor in Council is empowered to define "local signals" and "distant signals" for the purpose of implementing a compulsory licensing regime for the retransmission of Canadian and U.S. radio and television signals by cable systems and other retransmitters. The regime will require the payment of royalties for the retransmission of "distant signals" only.

In order to harmonize the existing Canadian Radio-television and Telecommunications Commission (CRTC) carriage priority rules with the new retransmission regime, the definitions of "distant signals" for the purpose of the Copyright Act are based on the definitions found in the CRTC's Cable Television Regulations, 1986. In general, the definitions would not impose copyright liability in circumstances where licensees are under a regulatory obligation to distribute a given class of signal. In order to ensure non-discriminatory treatment of signals transmitted by U.S. radio and television stations, these definitions will be applied, for the purposes of the Copyright Act, to the carriage of all stations, including the U.S. stations.

In summary, the definitions of "local signals" and "distant signals" are based on the following tests:

(a) in relation to a television station, the Grade B contour of the station plus 32 kilometers;

(b) in relation to an F.M. radio station, the 0.5 millivolt per meter field strength contour of the station;

(c) in relation to an A.M. radio station, the area within 32 kilometers of the principal studio of the station;

Where a station meeting the above criteria covers the entire service area of a cable system or a portion thereof, it would be considered local, hence exempt from royalty payments, in respect of the entire area served or the portion thereof as the case may be. Conversely, full or partial royalties would be payable for signals that are distant in relation to the entire service area or a portion thereof.

Alternatives Considered

There are no alternatives to the adoption of regulations since the Act requires regulations to be made in order for the retransmission regime to be implemented.

Consistency with Regulatory Policy and Citizens' Code

While these Regulations were not included in the Federal Regulatory Plan, early notice was provided by the tabling of a prior version of these Regulations with the Legislative Committee on Bill C-130 in August, 1988.

Anticipated Impact

The persons most directly affected by the retransmission regime are cable television companies and other retransmitters of radio and television signals, and rights owners of the copyright works contained in those signals. Cable television subscribers may also be indirectly affected by way of higher monthly service fees in 1990 as a result of the regime. Cable operators may also move to reduce the number of signals they distribute in order to limit the financial impact on subscribers.

The total cost of the regime to the cable television industry cannot be determined at this time because of the nature of the compulsory licence regime, which envisages a tariff setting process before the Copyright Board.

Consultation

Comments were received from 16 groups, organizations and companies representing retransmitters, rights owners and customers and from the British Columbia Ministry of Regional Development on the regulations prepublished in the Canada Gazette Part I on March 4, 1989.

There was a very clear divergence of views with rights owners generally finding that the test for determining the "area of transmission" of a television station too widely drawn, and retransmitters and others finding that the test proposed was too narrow. Some rights owners, like CBS Inc., objected to the principle of compulsory licensing. Most others accepted compulsory licensing but proposed narrower definitions ranging from the Grade A contour to the Grade B contour. The Motion Picture Export Association of America, the U.S. Public Broadcasting Service and a submission on behalf of four U.S. border television stations argued that the minimum acceptable definition was one based only on the Grade B contour. However, Citadel Communications Co. Ltd., the licensee of two U.S. border television stations retransmitted by cable in Canada, felt that the definition did not recognize longstanding carriage and viewing patterns and accordingly proposed that U.S. stations currently carried on cable be "grandfathered" and expressly declared as "local".

Retransmitters and the Consumers Association of Canada argued that the test for television stations was too mechanical and suggested an additional test - that of off-air "receivability" in the community served. The British Columbia Ministry of Regional Development proposed, in addition to an off-air "receivability" test, that a broadcaster be entitled to designate its signals as "significantly viewed" hence local in the cable community served.

In addition, comments were received on comparability with the U.S. retransmission compulsory licence regime. Some argued that the definitions were more onerous on Canadians than the U.S. regime is on Americans, while others argued that the regulations were far less demanding than the corresponding U.S. definitions.

In light of this very wide divergence of views, the government considers that the regulations represents a workable compromise between the competing interests and therefore is making no changes.

Compliance Mechanism

The nature of the regulations is strictly definitional. Once adopted, it will be for the Copyright Board or the courts to enforce whatever rights or liabilities may flow from these Regulations.