Canadian Communications Law - Broadcasting | Telecommunications | Copyright

David Elder -

In an important constitutional case, the Supreme Court of Canada has granted leave to hear an appeal from a decision that found that the application of privacy law to the videotaping of individuals crossing picket lines infringed the Canadian Charter of Rights and Freedoms.

 As we noted in a previous post, the judgment in question considered the activities of a union that had videotaped picketing activity during a strike at an Edmonton casino.  Like other Canadian private sector privacy laws, Alberta’s Personal Information Protection Act (PIPA), generally requires the consent of individuals for the collection, use and disclosure of their personal information, including videotaped images of identifiable individuals.  The union, which did not obtain such consent, videotaped and photographed the picket lines in order to publicize the images of individuals crossing the lines. 

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As we've discussed in a number of recent blog posts, the Supreme Court of Canada this week released a number of major copyright-related decisions. In one of these cases, Society of Composers, Authors and Music Publishers of Canada v. Bell Canada (SOCAN), the Supreme Court considered whether there would be a tariff for the communication of previews of musical works over the internet.

Online music previews are short extracts of musical works and assist a consumer in deciding musical purchases. The Copyright Board concluded that those who make previews available, and the users that listen to previews, were entitled to avail themselves of the fair dealing exception under section 29 of the Copyright Act, as listening to the previews constituted research of a purchasing decision (see our previous post). The Federal Court of Appeal upheld the Copyright Board’s decision and SOCAN sought leave to appeal to the Supreme Court of Canada.

In upholding the decisions below, the Supreme Court concluded that the previews constituted fair dealing, applying the test articulated by the Court in CCH Canadian Ltd v. Law Society of Canada (CCH).

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David Elder -

The past year has seen many important developments in the area of Canadian communications law, and we have blogged about many of them here.

In several cases, the key developments have stemmed from ongoing trends in the industry, especially those relating to technology and industry consolidation.  If there is one unifying theme for the key legal and policy changes in 2011, it would be that many of them stem from the continuing disruptive effect of broadband internet services and digital technology on both the existing business models for broadcasting and telecommunications and the regimes under which those industries have been regulated.  Several courts began considering, or issued judgement in cases that explore the intersections between the laws respecting, broadcasting, telecommunications and copyright.

Here are our picks for the most significant communications law developments of 2011:

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Les téléspectateurs francophones qui espéraient l’arrivée d’un second service de télévision payante ne verront pas leur souhait exaucé de sitôt. Le CRTC a récemment annoncé que le genre des services de télévision payante d’intérêt général de langue française ne serait pas ouvert à la concurrence en raison d’un manque de demandeurs pour un nouveau service.

Cependant, bien que la clôture de l’étude en raison d’un manque de demandes est compréhensible, on peut se demander pourquoi aucune demande n’a été faite suite à l’appel de demandes du CRTC.

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David Elder and Lindsay Gwyer -

The long road for local broadcasters wanting to charge fees to cable and satellite companies for rebroadcasting their signals just got a little longer, as the Supreme Court of Canada has granted leave to hear an appeal a Federal Court of Appeal decision that upheld the ability of the Canadian Radio-television and Telecommunications Commission (CRTC) to establish such a regime.

The “Value for Signal” (VFS) regime was authorized by the CRTC in its 2010 group licensing framework decision, and was intended “to remove unnecessary barriers to the continued viability of private broadcasters and to ensure that broadcasters are able to obtain, through market-based negotiations, fair value of the programming they broadcast.”

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David Elder and Edwin Mok -

In an attempt to preserve the status quo leading up to its decision on the regulatory framework for vertical integration in the broadcasting industry, the CRTC has indicated that existing carriage arrangements between broadcasters and distributors should remain in place for now.

On July 8, 2011, the CRTC issued Broadcasting Regulatory Policy CRTC 2011-415 (the Policy), coincident with the filing of final written comments respecting the recent CRTC public hearings on vertical integration in Canada.

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David Elder -

The CRTC has initiated a public proceeding to allow interested parties to comment on the implications for the Canadian broadcasting system of the increasing consumption of Internet-delivered programming in Canada – but has urged them to back up their assertions with any applicable data.

The “fact-finding exercise” follows pressure from several sources to consider changes to the existing broadcasting regulatory framework in light of increased competition from unregulated over-the-top (OTT) program providers.

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David Elder and Maya Weiss -

In the latest chapter in the challenging history of satellite radio in Canada, the CRTC recently approved the long-pending merger of Canada’s two satellite radio services, Sirius Canada Inc. (Sirius Canada) and XM Satellite Radio Canada (XM Canada), effectively creating a monopoly for Satellite Subscription Radio (SSR) services in Canada.

Under the terms of the deal, both Sirius Canada and XM Canada will be wholly owned by Canadian Satellite Radio Holding Inc. (CSRHI), currently the holding company for the licensee of Sirius Canada.

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David Elder -

The Supreme Court of Canada has announced that it will hear an important “convergence” case respecting regulatory treatment of Internet access to broadcasting content.

On March 24, the Court granted leave to appeal last summer’s judgement of the Federal Court of Appeal, which found that Internet Service Providers (ISPs) do not carry on “broadcasting undertakings”, within the meaning of the Broadcasting Act, when they provide access through the Internet to broadcasting material requested by users.

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On July 17, 2010, CSI, the company formed as a royalty-collection vehicle by the Canadian Musical Reproduction Rights Agency (CMRRA)  and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) , proposed three new tariffs which would apply to the reproduction of music (which can include broadcasting, streaming and downloading) by non-commercial radio stations, online music providers, and satellite radio providers.

In the proposed CMRRA-SODRAC Inc. Non-Commercial Radio Tariff, 2011, CSI is requesting that the Copyright Board of Canada  certify a tariff of 0.63% of the annual gross operating costs of radio stations that are either owned or operated by not-for-profit corporations, excluding the Canadian Broadcasting Corporation.  In the case of such a non-commercial radio station that is a “low use station” (generally, a station that plays music for less than 20% of its broadcast time), the tariff would be lower, at 0.23% of its annual gross operating costs.  In exchange for the payment of the tariff, the non-commercial radio stations would receive a license to broadcast music contained in CSI’s repertoire as often as desired, including the streaming of the broadcast over the Internet.

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David Elder -

“Free-to-air” local television signals may no longer be free to cable and satellite subscribers, following a recent court decision affirming the scope of the powers of the Canadian Radio-television and Telecommunications Commission (CRTC) under the Broadcasting Act.

In an important ruling that addresses the intersection of broadcasting and copyright law and policy, a majority of the Federal Court of Appeal found, in the case of Reference re the Canadian Radio-television and Telecommunications Commission’s Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2011 FCA 64, that the Copyright Act permits the CRTC to limit the statutory retransmission rights of broadcasting distribution undertakings (BDUs), such as cable companies, by imposing any regulatory or licensing condition that is consistent with the Commission’s statutory authority under the Broadcasting Act. In fact, the majority went so far as to state that Parliament has ranked the objectives of Canada’s broadcasting policy ahead of the statutory retransmission rights granted to BDUs under the Copyright Act.

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