Volume IX

Issue : 4: October 21, 2010

• Internet Service Providers Not Subject to Broadcasting Act
• AOL Domain Name Dispute
• Anti-Spam Legislation Introduced for Second Reading at House of Commons
• U.S. FCC Investigates Wireless Carriers Amid Complaints By Users
• Internet Defamation: Aldelo Systems Inc. v. Sinclair
• New Draft of Anti-Counterfeiting Treaty Released
• Apple Issued Parental Control Patent
• Facebook Granted Patent for Locating Online Members
• Motorola Sues Apple for Patent Infringement

Home > Volume IX > Issue 4: October 21, 2010 > Internet Service Providers Not Subject to Broadcasting Act

Internet Service Providers Not Subject to Broadcasting Act

The Canadian Federal Court of Appeal has decided that Internet Service Providers (ISPs) are not “broadcasters”.   In an application for a reference by the Canadian Radio-television and Telecommunications Commission (CRTC), the court was asked to determine whether ISPs carry on “broadcasting undertakings” subject to the Broadcasting Act, S.C. 1991, c.11 when they provide access through the Internet to “broadcasting” requested by end-users. The question arose following hearings as to whether a 1999 exemption from the requirements of Part II of the Broadcasting Act for various new media should be continued.

The court heard submissions from two groups with opposing views as to how the question should be answered: a coalition of ISPs, who submitted the question should be answered in the negative; and a “Cultural Group”, composed of the Alliance of Canadian Cinema, Television & Radio Artists, Canadian Film & Television Productions Association, Directors Guild of Canada and Writers Guild of Canada, who argued the question should be answered in the affirmative.

The court concluded that in providing access to “broadcasting”, ISPs do not transmit programs; as such, they are not “broadcasting” and therefore do not come within the definition of “broadcasting undertakings” which would make them subject to the Act.  The court relied on a nineteenth century case which demonstrated the distinction between the person providing the mode of transmission and the person making the transmission, as well as a more recent Supreme Court decision which concluded that ISPs were not liable for copyright infringement under the Copyright Act because they merely provide a means of communication, and do not communicate infringing works themselves.  The court stressed that their conclusion was based on the content-neutral role of ISPs and would have to be reassessed if this role should change.

For a copy of the decision, visit:
http://www.canlii.org/en/ca/fca/doc/2010/2010fca178/2010fca178.pdf