By Ahmad Hathout
A consortium of copyright holders wants the Federal Court of Appeal to take a second look at a decision by the Copyright Board of Canada that lowered the rate broadcasters pay those holders for the retransmission of distant television signals, after the court sent the original decision back for reconsideration because of the way the rate was calculated.
The copyright board had made the original decision on the rate for the retransmission of those television signals in August 2019, which the consortium challenged in part at the appeal court because it believed the rate was too low. The court granted part of the consortium’s grievance in July 2021, asking the board to relook at the calculation and hoped for an expeditious decision.
In its February 9 application for judicial review, the copyright consortium appeared stunned that a new panel of the board took until January this year to return a revised rate – and still lowered it further from $1.17 to $1.12 per subscriber per month.
“Rather than correcting the two ‘quite straightforward’ errors in the manner identified by this Court, the Board embarked on a search for new errors and performed new proxy price and profit margin analyses,” the application said.
“In the result, the Board investigated matters that had never been raised by any party on judicial review and — remarkably — reduced the Tariff rate even further,” it added.
The consortium argues that the board did not have the jurisdiction to do so, “acted unreasonably and introduced a cascade of legal, factual, and evidentiary errors,” including failing to restrict and keep itself within the confines of what the court ordered on redetermination.
The group is asking for the court to set aside the redetermination decision and make the correct adjustments or send the decision back to the board again to take another stab at it.
Broadcasting distribution undertakings (BDUs) like Rogers and Bell pay royalties to retransmit distant over-the-air television signals in the country as part of the subscription packages they sell to customers.
But since 2014, the BDUs and copyright collectives have caught a snag in what the agreed rate and amounts owing should be for those retransmission rights and had relied on mediation through the Copyright Board, which estimated at one point that annual royalties owed per year was about $130 million for 2016–2018.
The copyright consortium includes the Copyright Collective of Canada, Canadian Broadcasters Rights Agency, Canadian Retransmission Collective, FWS Joint Sports Claimants, Canadian Retransmission Right Association, Society of Composers, Authors and Music Publishers of Canada, Border Broadcasters, and Direct Response Television Collective.
