It’s Broadcasting Act v. Copyright Act at the Federal Court of Appeal

OTTAWA—Whether the Copyright Act takes precedence over the Broadcasting Act will be a central question before the Federal Court of Appeal when both sides of the value-for-signal debate meet for two days of hearings on Sept. 13 and 14. Last March the CRTC decided that over-the-air broadcasters like CTVGlobemedia and CanWest Global should negotiate value for the carriage of their signals with cable and satellite providers such as Rogers Communications Inc. and Bell Canada—if the Federal Court of Appeal grants the commission the necessary jurisdictional power to implement it. The jurisdictional question of whether the Broadcasting Act allows the CRTC to regulate a value-for-signal regime is now before the court. A set of high-stakes hearings has been scheduled for Sept. 13 and 14. The broadcasters say they need a value-for-signal regime to collect carriage fees from cable and satellite distributors. They argue it’s necessary to improve local television and sustain their business models. The distributors say the broadcasters’ drops in advertising revenue are cyclical and that major broadcasters operate profitable specialty channels. In a memorandum of fact submitted to the court last week, four of Canada’s English-language broadcasters argued that the Broadcasting Act grants the CRTC the far-reaching powers needed to implement such a regime. “Since the CRTC has determined as a matter of fact that the option to negotiate a regime would be good public policy to fulfill the objectives of the Act, it is only the CRTC’s jurisdiction to establish the proposed regime that is before the Honourable Court,” CTV, Global, V Interactions Inc. and the Newfoundland Broadcasting Co., wrote in a joint memorandum of fact. The distributors have not yet filed their memorandum of fact, and representatives from Bell and Rogers said they would not comment on the case until their arguments are filed. One broadcasting source said they expect cable and satellite distributors to argue that the Copyright Act does not give the CRTC jurisdiction to authorize the retransmission of the broadcasters’ television signals, and that, under sections 21 and 31 of the Copyright Act, a value-for-signal retransmission regime would constitute an infringement of copyright. But in a separate memorandum of fact filed with the court, Canwest said section 21 of the Copyright Act outlines the rights of broadcasters and permits them to authorize other broadcasters to retransmit their signals. Canwest also pointed to section 31 of the Copyright Act, which deals with the retransmission of creative works. “In s.31, which does extend to BDUs , Parliament has provided that retransmission of a literary, dramatic, musical or artistic work by a BDU is not an infringement of copyright, as long as the conditions set out in the sections are met. These include an express requirement that the retransmission is lawful under the Broadcasting Act,” Canwest argued. It is expected that the distributors will argue that sections 21 and 31 of the Copyright Act provide a list of exhaustive rights. The broadcasters are expected to argue these rights are not exhaustive and that the rights provided in the Broadcasting Act take precedence. According to the broadcasters, the Broadcasting Act supersedes the Copyright Act. They point to section 31(2)(b) of the Copyright Act, which states that the retransmission of any signal must be lawful under the Broadcasting Act. “Thus, Parliament clearly contemplated that the CRTC, under the Broadcasting Act, would determine the terms and conditions under which a BDU could retransmit a signal of a local station carrying copyrighted works within the signal,” the broadcasters’ memorandum of fact said. The document also said that the ability of a distributor to obtain and retransmit a local station’s signal exists completely under the regulatory umbrella of the Broadcasting Act. When the CRTC released its value-for-signal decision last March, the cable and satellite distributors warned that the decision—if approved by the Federal Court of Appeal—could lead to higher cable bills and affect service. Under the proposed regime, broadcasters would have the power to pull their signals from distributors if negotiations failed. “It raises the prospect of black-outs. I think that is very wrong,” Phil Lind, vice chairman of Rogers, told The Wire Report in March. “The situation is fine exactly the way it is today. We’re not interested, and our customers aren’t interested, in paying more for what they’re getting today.” jmigneault@thewirereport.ca

It’s Broadcasting Act v. Copyright Act at the Federal Court of Appeal

Broadcast | June 16, 2010

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