Canadian Communications Law - Broadcasting | Telecommunications | Copyright

David Elder -

The CRTC has initiated a public proceeding to show cause why certain telecommunications service providers should not have their telecommunications services disconnected, in light of their failure to become members of the agency responsible for handling subscriber complaints.

The Commissioner for Complaints for Telecommunications Services Inc. (CCTS) is an independent consumer agency tasked with resolving complaints from consumers and small businesses relating to retail telecommunications services for which the CRTC no longer requires a tariff. 

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David Elder -

The CRTC has refused a request by Globalive Wireless Management Corp. (operating as Wind Mobile) to initiate a review of the ownership structure of TELUS Corporation (TELUS Corp.) and TELUS Communications Inc. (TCI) in order to determine whether they might be operating in contravention of Canadian ownership rules.

Wind Mobile had suggested that approximately 48% of the beneficial holders of the voting shares of TELUS Corporation were located outside of Canada, and submitted that this provided compelling evidence that TELUS Corp. had exceeded the maximum 33 1/3% non-Canadian voting interests permitted for a carrier holding company by the Canadian ownership requirements, which are set out in the regime created by the Telecommunications Act and the Canadian Telecommunications Common Carrier Ownership and Control Regulations (the Regulations).

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David Elder -

Although the date on which Canada’s Anti-Spam Legislation (CASL) may come into force is uncertain, the CRTC has issued two bulletins that provide guidance as to how to comply with the new law, once proclaimed in force.

But while some of the new guidance is helpful, other provisions will likely create significant operational concerns for businesses.

The Commission is the body charged with oversight and enforcement of most provisions of the new law, including the core provisions respecting commercial electronic messages (CEMs), alteration of transmission data and the installation of computer programs.  In addition, the CRTC has the power to make regulations under the Act with respect to certain matters.

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In a ruling issued July 12, 2012, the Supreme Court upheld the decisions of the Federal Court of Appeal and the Copyright Board in Re: Sound v. Motion Picture Theatre Associations of Canada, concluding that performers and makers of sound recordings are not entitled to royalties for the broadcast of their recordings in film or on television as part of a movie soundtrack.

Under section 19 of the Copyright Act, performers and makers of sound recordings are entitled to remuneration when their recordings are performed or telecommunicated to the public. However, the section 2 definition of “sound recording” excludes a “soundtrack of a cinematographic work where it accompanies the cinematographic work.” “Soundtrack” is not defined, but the appellants had argued that it means the whole aggregate of sounds accompanying the film, and not the individual pre-existing sound recordings incorporated into the soundtrack. They contended, therefore, that royalties should be collected when those recordings are broadcast as part of a film’s soundtrack.

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David Elder -

In a major, but slim, victory for proponents of electronic commerce, a majority of the Supreme Court of Canada has ruled that online sellers of music and video game downloads are not required to pay more copyright royalties than their “bricks and mortar” counterparts, solely because the products from the virtual stores are delivered via the internet.

In addition, although not considered by the Court, these rulings would also suggest that another copyright tariff, for the delivery of ringtones to mobile phones, may be invalid.

In two decisions that form part of the unprecedented “copyright pentalogy” of copyright tariff appeals heard by the top court last year, the Supreme Court considered whether a download of a recording of a musical work, either on its own or when incorporated into a video game, constituted a “communication to the public by telecommunication,” such that a download could attract a distinct copyright royalty, in addition to the royalty payable to the copyright holder for the reproduction of the work on the buyer’s computer or device. 

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