OTTAWA – Lawyers for the broadcast distribution undertakings (BDUs) told the Supreme Court of Canada on Tuesday that the CRTC’s regulations can’t trump retransmission provisions within the Copyright Act.
Jay Kerr-Wilson, a partner at Fasken Martineau DuMoulin LLP who was representing Rogers Communications, said the CRTC stepped into copyright law when it established its value-for-signal (VFS) regime (also known as fee-for-carriage) and argued that the CRTC doesn’t have the authority to set new copyright, since only Parliament has that right.
“The CRTC cannot have the jurisdiction to do what it proposed since its proposed scheme creates a new copyright in television signals and as this court has said on numerous occasions, only Parliament has the power to enact copyright,” he said. Because the proposed VFS regime would give control over the signal to broadcasters, it brings this under the Copyright Act. “It’s giving the broadcasters the right to say yes or no to use of the signal,” he added.
Kerr-Wilson likened the transmission of a television program to an envelope and a letter: the envelope being the signal and the program being the letter. While the program is protected under the Copyright Act, protections afforded the signal are limited and only apply to the retransmission of a signal by an over the air broadcaster. And since BDUs are not OTAs, they are free to distribute the signal.
“The cable company has the right to retransmit the broadcaster’s signals because it’s not an infringement of copyright. Because Parliament didn’t grant the broadcaster any protection in its signal with respect to cable retransmission, then the cable company can do that because it’s not prohibited,” said Kerr-Wilson.
He argued that if Parliament had wanted to give the CRTC specific authority over the signal, then it would have done so in the Copyright Act or the Broadcasting Act. “It’s not there. So the CRTC’s jurisdiction is necessarily broad but it has to stop at the point where it runs up against another statutory scheme,” he said. “The CRTC could benefit broadcasters by changing the level of income tax they pay but they don’t have the statutory [authority] to do that.”
Neil Finkelstein, a partner at McCarthy Tétrault who was representing Cogeco Cable, suggested that it wasn’t a simple omission in the Copyright Act that cable companies weren’t included in the provision on retransmission, it was deliberate. “That is a deliberate statement by Parliament, call it implicit if you like, but a deliberate statement by Parliament that cable companies are not to be blocked in the retransmission. The same right was not given to a broadcaster deliberately in relation to cables companies as it was in relation to other broadcasters. That was deliberate by Parliament. And the CRTC’s scheme frustrates that very careful intension,” he argued.
Benjamin Zarnett, a partner at Goodmans LLP who was representing Bell Media, which backs the CRTC’s value for signal regime, noted that the BDUs (appellants) argument that this falls under the Copyright Act is wrong. The right starting point, he said, is the Broadcasting Act.
“My friends,” he said referring to the cable companies’ lawyers, “go looking for copyright, looking exclusively for copyright, and not surprisingly they find it.” However, by starting with the Broadcasting Act, it corrects certain errors that are fundamental the BDUs position, he added.
VFS, or “option to negotiate regime” as Zarnett described it, is broadcasting regulation, not copyright law. As well, it’s fruitless effort to look at broadcasting regulation through a copyright lens. “I say in the end it is not a helpful analytical exercise, certainly not a necessary one, to try to pigeonhole proper broadcasting regulation into some other category. Each has their attributes, there may be some overlap between them, but copyright is copyright and this is broadcast regulation,” Zarnett argued.
The Bell lawyer pointed a flaw in the BDUs argument during his remarks, noting that the cable companies want a right to retransmit without providing compensation because “there is absence of copyright protection” and not a specific provision of the Copyright Act that says a BDU may retransmit.
“The only thing that flows from the absence of copyright protection is a BDU need not worry about infringing a copyright when it takes a certain step,” Zarnett said. “But it must worry about broadcast regulation and as long as that broadcast regulation meets the test of implementing broadcast policy, the price of entry of the BDU, and being part of the system is to comply with them.”
The Supreme Court reserved its decision.
