Court Says ISPs Are Not Broadcasters

by Jordan Richardson on July 9, 2010

The Canadian Federal Court of Appeals has ruled that internet service providers are indeed not broadcasters. This decision is based on the principle that ISPs are not broadcasters because they provide access to video content but do not develop the video content themselves. The video content is obviously supplied by third parties.

ISPs are implied as “neutral,” so as long as they remain as such they will not be considered broadcasters.

In essence, the Court is asserting what most of us already know: the internet is, like the telephone, matter designed to deliver information. It does not provide the information itself. It sounds incredibly simple, doesn’t it?

In any event, the CRTC asked the Court to decide whether internet service providers could be on the hook under Canada’s Broadcasting Act. This would mean that the ISPs would have to contribute to the creation of Canadian content in the same way that broadcasters do. The ruling nixes that plan and also settles the issue of whether or not ISPs have to pay royalties.

Groups including the Canadian Film and Television Production Association, ACTRA and the Directors Guild of Canada had wanted the providers to contribute 2.5% of their revenues to help fund content creation, but the ruling has obviously shut the door on any such thing.

For many, the key component in the ruling is the neutrality of the ISPs. This essentially means that the internet service providers must continue to play passive roles in merely supplying content. Should they shift to more active grounds, it appears that they could conceivably be considered broadcasters and wind up springing for the levies involved.

Part of the problem with such a ruling is that we live in complex times. Rogers Communications, for instance, has various facets to its business and does function as a broadcasting company. While this ruling does not impact the Rogers Media subsidiary, one does have to wonder how or if the service provisions of Rogers could feasibly intersect with Rogers Media. While the ruling suggests Rogers can “produce” content and still be considered an ISP, surely Rogers can control certain content.

Now, the distinction between an ISP and a broadcasting company like CanWest is clear. But the lines become blurred when you consider that Shaw Communications now owns CanWest and Rogers Communications owns its own fleet of channels and networks.

While it’s easily argued that the ISPs are not broadcasters in the traditional sense, I think it’s clear that Canada’s Big Three do indeed have broadcasting interest. It’s also clear that new rulings on these sorts of topics need more nuance and less old-fashioned thinking.

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