Law Times

lAw Times • April 23, 2012 FOCUS PAGE 13 Debate not over on regulating ISPs as broadcasters B BY JUDY VAN RHIJN For Law Times merely the mode of transmission for communications, according to the Supreme Court in its Feb- ruary response to a reference on the matter from the Canadian Radio-television and Telecom- munications Commission. Reference re Broadcasting Act roadcast regulations won't apply to entities such as Internet ser- vice providers that offer that it didn't want them to pay into a fund but it also decided it wanted an answer to the question of whether they could be regulat- ed under the Broadcasting Act." Canadian Association of In- ternet Providers chairman Tom Copeland recalls that his organi- zation was involved at the early stages of the fight to maintain the status quo but says the incum- passed over its wires," the court said. "This court had to deter- mine whether the term 'transmit' implicated an entity who merely provided the mode of transmis- sion. The court concluded that only the actual sender of the mes- sage could be said to 'transmit' it." Kerr-Wilson believes the ap- proach taken is also consistent with the Supreme Court' s ruling distribution channel when they are trying to get paid twice. cultural group of content produc- ers will find a new approach for the courts to test. "We expect it to arise every three to five years for the foreseeable future, especially as the large telecommunications companies do become more inte- grated. That' Copeland predicts that the " s who they will target." came about in 2008 when the CRTC was reviewing a policy decision from 1999 that had ex- empted all new media broadcast- ing undertakings from Part II of the Broadcasting Act. Jay Kerr-Wilson, a commu- nications lawyer at Fasken Mar- tineau DuMoulin LLP, points to the increasing access to content over the Internet as well as the overlap among those engaged in broadcasting and those involved in telecommunications services as factors prompting the review. " something else as well. For in- stance, Rogers has an Internet service and a cable service, so it is already partly regulated under the Broadcasting Act." If the CRTC could regulate an A company can be an ISP and Intellectual property rights holders have been looking for some way to access telecommunication providers' revenues ever since I became an ISP. bent carriers led the final charge. " As they have become more ver- tically integrated, the water has become more muddied for them and they needed to clarify it. They own both content-producing en- tities as well as delivery services." The resulting reference to the Federal Court of Appeal was ex- tremely unusual. "It that regulating the area didn't decide it itself, anticipation that whatever the CRTC decided would be ISP as a broadcasting undertak- ing, it might have to pay into a fund that supports new Canadi- an media. "Producers of film and television content, actors, and di- rectors were excited about a new source of revenue, Wilson. "ISPs, not surprisingly, objected, saying that they have always been regulated as a tele- com service. The CRTC decided " says Kerr- pealed anyway, so they decided to shortcut the process by posing the question directly. The Federal Court found that ISPs were in fact a telecom service. "Perhaps there was some ap- the tribunal charged with " says Kerr-Wilson. is unusual 1891 decision in Electric Des- patch Co. of Toronto v. Bell Tele- phone Co. of Canada, in which it had to interpret the term "trans- mit" in relation to telephone pro- viders. "Like the ISPs in this case, Bell Telephone had no knowl- edge or control over the nature of the communication being Supreme Court In the subsequent appeal, the referred to its " in Society of Composers, Authors, and Music Publishers of Canada v. Canadian Association of Inter- net Providers. "The question there was whether ISPs that provide ac- cess to the Internet are engaged in copyright activity and required to pay copyright fees. There was a similar approach and a similar finding that all the ISP does is pro- vide a means of communication. They are not actively engaged in deciding which content gets dis- tributed, how it gets distributed, and who distributes it." Copeland says members of a laugh. "Intellectual property rights holders have been looking for some way to access telecom- munication providers' revenues ever since I became an ISP. I don't foresee this is going to go away, and it shouldn't go away. Rights holders and content providers have a right to benefit from their work and earn a living. What we object to is when they try to double-dip from the same his association are glad to see the status quo is still relevant but they in no way believe the debate is over. "Oh, hell no, " he says with now "safe" in general terms, es- pecially those that don't control content or decide what customers can access. "If we were essentially doing the programming, it would be different, but we just provide the pipe and the customer decides what they view. That' But he believes the ISPs are is the end of this particular ar- gument unless there are changes Kerr-Wilson agrees that this s the key." to the Broadcasting Act or Tele- communications Act. Still, he expects there will always be de- bate about the regulation of the Internet, an issue Justice Simon Noël touched on in the Federal Court decision. He suggested that the act' broadcasting could evolve to be more in line with the digital age and that there' to the degree of control that the ISPs might exercise in the future. He noted they may not always be content neutral. Kerr-Wilson s no certainty as will also be debate about whether Canada' predicts there Broadcasting Act and Telecom- munications Act continues to be the right one given the increasing convergence between broadcast- ing and telecommunications ser- vices. "There have already been discussions about having one act, a communications act, but there are pros and cons to that approach," he says. s approach to a separate LT CANADIAN PATENT REPORTER EDITED BY MARCUS GALLIE, RIDOUT & MAYBEE LLP FOURTH SERIES (VOLUMES 1 TO 65): EDITED BY GLEN BLOOM, OSLER, HOSKIN & HARCOURT LLP FIRST, SECOND AND THIRD SERIES: EDITED BY GOWLING, STRATHY & HENDERSON FOUNDING EDITOR: GORDON F. HENDERSON, C.C., Q.C., LL.D. 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