Intellectual Property
hile Internet ser-
vice providers (ISPs) might bring
the world to subscribers’ comput-
ers and wireless devices, ISPs
are — for now — just the pipe
through which information flows
and play no active role in the con-
tent, according to a recent Federal
Court of Appeal decision.
In July, the court said that ISPs
“do not carry on, in whole or in
part, ‘broadcasting undertakings’
subject to the Broadcasting Act
when, in their role as ISPs, they
provide access through the Inter-
net to ‘broadcasting’ requested by
end-users.”
That answered a question the
Canadian Radio-television and
Telecommunications Commission
(CRTC) brought before the court
as a reference from its Broadcast-
ing Regulatory Policy CRTC 2009-
329 on new media.
A cultural group, which
includes the Alliance of Canadian
Cinema, Television & Radio Artists (ACTRA) and the Canadian
Film & Television Production
Association (CFTPA), believes that
ISPs should be subject to the
Broadcasting Act. The group
believes the delivery of audio and
audiovisual content to subscribers
through the Internet is “
broadcasting” since it involves the transmission of programs by means of
telecommunications. As such, they
called on the CRTC to impose a
levy on ISPs— similar to one traditional broadcasters pay to the
Canadian Media Fund based on
five per cent of their revenues— to
fund the creation and presentation
of Canadian content, including
new media.
Although the commission
determined that a levy was “
neither necessary nor appropriate at
this time,” it sought clarity from
the court as to whether ISPs are
subject to the Broadcasting Act
and, if so, would fall within the
scope of the CRTC’s new media
exemption order, since it was
intended to encompass all broadcasting undertakings delivered
and accessed over the Internet.
A coalition composed of such
members as Bell Canada, Rogers
Communications Inc. and Shaw
Communications Inc., argued that
ISPs are subject to the
Telecommunications Act and not the
Broadcasting Act since they fall
W
ISPs are very clearly
telecommunications
undertakings and
not broadcasting
undertakings — and
are, as the court
stated, ‘mere
conduits’ for
communication.
— David Elder
Communications Lawyer
OTTO STEININGER / IMAGES.COM
Why Internet providers
aren’t broadcasters — for now
By Christopher Guly
outside of the definition of “broad-
casting undertaking” and “do not
exercise any control over creating,
choosing or acquiring rights to the
content that end-users receive.”
The court agreed with them.
“In providing access to ‘
broadcasting,’ ISPs do not transmit programs. As such, they are not
‘broadcasting’ and therefore they
do not come within the definition
of ‘broadcasting undertaking,’”
wrote Justice Marc Noël in the
reasons for the unanimous ruling.
“I think the court absolutely
made the right decision,” says
David Elder, an Ottawa-based
communications lawyer. “ISPs are
very clearly telecommunications
undertakings and not broadcast-
ing undertakings— and are, as the
court stated, ‘mere conduits’ for
communication.”
He warns that if the court had
sided with the cultural coalition, it
could have set an “extremely dan-
gerous precedent to the extent that
ISPs could be liable for everything
that a user may or may not down-
load or access through that con-
nection” — whether it involves
facing copyright fees or worse,
criminal liability in cases of child
pornography or hate propaganda.
