Representatives of the country's production community and the major ISPs appeared in Court Monday to debate whether ISPs should be subject to the Broadcasting Act when providing subscribers with access to video programming.
The Court is hearing an Appeal of a previous lower court judgment from July 2024 that found the ISPs were not broadcasting under terms defined in the Broadcast Act.
At that time, the Court ruled that "...ISPs' sole involvement is to provide the mode of transmission, they have no control or input over the content made available to [I]nternet users by content producers and as a result, they are unable to take any steps to promote the policy described in the Broadcasting Act or its supporting provisions."
Industry developments may quickly outpace that position, observers say, if they have not done so already. Certain Canadian ISPs do have exclusive content offerings, and as such they do exercise some control or input over programming; recent industry acquisitions and mergers have also more closely aligned ISPs with media production and major content or copyright holders.
If successful, the Appeal would see CRTC given the authority to regulate ISPs in a manner that furthers the objectives of the Act. They would have to contribute to Canadian programming funds, as do other TV and radio broadcasters.
They could face additional rules and regulations for type of service provision and type of access to content.
No judgement was rendered in the Court's session on January 16, but proceedings are being archived with the permission of all parties.
The archiving of Court materials includes videotaped proceedings and a webcast, to be posted on the Court's website.
The current appeal pits the country's 'creative community', as represented by Alliance of Canadian Cinema, Television & Radio Artists et al. against the country's providers, including Bell Alliant Regional Communications, LP et al.
"This case is about ensuring the integrity and vibrancy of the Canadian broadcasting system - a system that continues to evolve and that Canadians have built through sound public policy," the Creative Coalition, an umbrella alliance of organizations including actors, directors, producers and screenwriters, said in a joint statement.
The Creative Coalition argued that Parliament had always intended that the Broadcasting Act be applied in a technology neutral manner.
"Broadcasting is evolving as more and more Canadians watch television on their computers and flat screen TVs via their Internet connection," continued the Creative Coalition in its statement. "Contrary to the assertions of the ISPs, the CRTC has the tools under the Broadcasting Act to evolve with the broadcasting system it regulates."
Case documentation shows Alliance of Canada Cinema, Television & Radio Artists (ACTRA), Canadian Media Production Association (CMPA), Directors Guild of Canada (DGC) and Writers Guild of Canada (WGC) (The "Cultural Groups") on one side of the issue, with Bell Aliant Regional Communications, LP, Bell Canada, Cogeco Cable Inc., MTS Allstream Inc., Rogers Communications Inc., Telus Communications Company and Videotron Ltd. (The "ISP Coalition"), Shaw Communications Inc. on the other.
The industry association had prepared and tabled at the time a 55 point submission addressing the issues and concerns its members voiced about Canadian Broadcasting in New Media.
Although the CRTC essentially took a 'hands-off' approach to new media and online content delivery, it was cognizant that its stance could not be sustained indefinitely.
"Over time, the Commission's hands-off approach to wireless may come under pressure as it becomes a more important platform tool to access all forms of communications and the distribution of Canadian content", the CRTC wrote in a related document.
The Supreme Court could take between six and eight months to reach its decision.
