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Canada’s wholesale Internet service providers (ISPs) do not act as broadcasters by providing end-users access to the Internet, the Supreme Court of Canada has maintained in a ruling.
But the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) will find another way to make ISPs pay to support Canadian content as broadcast entities do, says Stephen Waddell, national executive director at ACTRA.

“We’re not going to give up, we believe that ISPs have a responsibility to contribute to the system,” he says. “So we’re going to find other means by which we can have the ISPs make that contribution.”

Thursday’s decision is a blow to Canada’s cultural groups that argued ISPs such as Bell and Rogers can deliver content identical to that viewed on televisions via cable or satellite. The groups previously appealed to the Canadian Radio-television and Telecommunicaitons Commission to force ISPs to pay 2.5 per cent of their revenue towards funding of new media creation for Canadian content.

But the Federal Court of Appeal ruled that since ISPs don’t have input into the content of programming, they are not beholden to Canada’s Broadcasting Act.

The case was heard by the Supreme Court Jan. 16, and has been dismissed with costs as ruled by the court. The ACTRA, the Canadian Media Production Associations, the Directors Guild of Canada, and Writers Guild of Canada appealed the decision made by the Federal Court of Appeal July 7, 2010. The CRTC had referred the matter to the court.

The Canadian Association of Internet Providers (CAIP) applauded the court’s decision. Since ISPs don’t make decisions about what people can view or hear, they can’t be considered broadcasters, says Tom Copeland, chairman of CAIP.

“I wonder how many times we have to have the Canadian courts reinforce this fact before content folks accept it,” he says.

“We and the other creative groups are disappointed with the ruling,” says Stephen Waddell, national executive director of ACTRA. “We thought we had a shot with this, but are disappointed the Supreme Court didn’t see it our way.”

Canada’s widest-reaching ISPs were parties in the case, including Bell Canada, Rogers Communications, Telus Communications, MTS Allstream Inc., Shaw Communications Inc. and Videotron Ltd.

Those corporations also operate broadcasting businesses that do contribute funds to Canadian content, Waddell says. “ISPs, which make billions of dollars off content flowing through their pipes should also make a contribution to the production.”

But the Supreme Court dismissed that argument, stating that ISPs only provide access to the Internet while taking no part in the selection, origin, or packaging of content. The Broadcasting Act is “not meant to capture entities which merely provide the mode of transmission,” the court explained. “The Broadcasting Act makes it clear that ‘broadcasting undertakings’ are assumed to have some measure of control over programming.”

Lawyers representing cultural groups argued that ISPs actively block some content and place priority on others. That amounts to exercising control of the transmission of online video, the applicant’s lawyers argued in court.

But ISPs fit more comfortably under the Telecommunications Act and can be described as “telecommunications common carriers,” the ISP coalition’s lawyers responded.

ACTRA and other cultural groups will continue to pursue the goal of compelling ISP to contribute funds, Waddell says. “There are other avenues, there are other acts.”

The Telecommunications Act is one example, he said, or a legislative change could be pursued.

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Brian Jackson
Brian Jackson
Former editorial director of IT World Canada. Current research director at Info-Tech

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