February 9, 2012 @ 16:48:25
ISPs are not broadcasting. Imagine that!
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Today, the Supreme Court of Canada issued a new decision in Reference re Broadcasting Act, finding that ISP (Internet Service Providers) are not “broadcasting” in the sense of the Broadcasting Act.

The actual question asked of the Court was, “Do retail Internet service providers (“ISPs”) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?”

The Supreme Court unanimously found that the terms “broadcasting” and “broadcasting undertaking”, interpreted in the context of the language and purposes of the Broadcasting Act, are not meant to capture entities which merely provide the mode of transmission. Because ISPs have no ability to control the content of programming over the Internet, the Court found that ISPs were not broadcasting.

What this means in plain terms is that ISPs are not by way of the Broadcasting Act obligated to pay levies in the same way cable and satellite companies are charged. This was what a “cultural group” consisting of the Alliance of Canadian Cinema, Television & Radio Artists (ACTRA), Canadian Film & Television Production Association (CFTPA), Directors Guild of Canada (DGC) and Writers Guild of Canada (WGC) argued for.

On a related note, this decision shows how desperately Canada needs a modern version of the Copyright Act. Seriously, I remember similar arguments in 1996 in Russia, when a bunch of starry-eyed legal scholars (myself included) debated the applicability of various legal notions to the Internet.

Internet is no longer the unknown parallel reality. It has not been for a long time. Today, a great chunk of transactions involving IP do not exist outside the Internet.

Continuing to treat the Internet as if it were a playground ruled by the naughty boys is not going to get us very far.

People often ask me – how is it that I support strong copyright laws and yet abhor most kinds of government regulation.

My answer is simple. We don't need more regulation of the Internet. We need less regulation in our lives, online and offline. What we do need, however, are efficient ways of protecting and enforcing formally equal individual rights, including the rights of creators and investors.

Categories:Intellectual Property:CopyrightIntellectual Property
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