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SUPREME
COURT OF CANADA
Citation: Reference re Broadcasting Regulatory Policy CRTC 2010-167 and
Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489
|
Date: 20121213
Docket: 34231
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IN THE MATTER
OF the Broadcasting Act, S.C. 1991, c. 11 ;
AND IN THE
MATTER OF the Canadian Radio-television and Telecommunications
Commission’s Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting
Order CRTC 2010-168;
AND IN THE
MATTER OF an application by way of a reference to the Federal Court of Appeal pursuant to ss. 18.3(1) and 28(2) of the Federal
Courts Act, R.S.C. 1985, c. F-7 .
Between:
Cogeco
Cable Inc., Rogers Communications Inc.,
TELUS
Communications Company and Shaw Communications Inc.
Appellants
and
Bell
Media Inc. (formerly CTV Globemedia Inc.), V Interactions Inc., Newfoundland
Broadcasting Co. Ltd. and Canwest Television Limited Partnership
Respondents
-
and -
Canadian
Radio-television and Telecommunications Commission
Intervener
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein,
Cromwell, Moldaver and Karakatsanis JJ.
Reasons
for Judgment:
(paras. 1 to 83)
Joint
Dissenting Reasons:
(paras. 84 to 126)
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Rothstein J. (McLachlin C.J. and LeBel,
Fish and Moldaver JJ. concurring)
Abella and Cromwell JJ. (Deschamps and
Karakatsanis JJ. concurring)
|
Reference re
Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC
2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489
IN THE MATTER OF the Broadcasting Act,
S.C. 1991, c. 11 ;
AND IN THE MATTER OF the Canadian Radio-television
and Telecommunications
Commission’s Broadcasting Regulatory Policy CRTC
2010-167 and Broadcasting Order CRTC 2010-168;
AND IN THE MATTER OF an application by way of a
reference to the Federal
Court of Appeal pursuant to ss. 18.3(1) and 28(2) of the Federal Courts Act,
R.S.C. 1985, c. F-7 .
Cogeco Cable Inc., Rogers Communications
Inc., TELUS
Communications Company and Shaw
Communications Inc. Appellants
v.
Bell Media Inc. (formerly CTV Globemedia
Inc.),
V Interactions Inc., Newfoundland
Broadcasting
Co. Ltd. and Canwest
Television Limited Partnership Respondents
and
Canadian Radio-television and
Telecommunications Commission Intervener
Indexed as: Reference re Broadcasting
Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168
2012 SCC 68
File No.: 34231.
2012: April 17; 2012: December 13.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the federal court of appeal
Communications
law — Broadcasting — Canadian Radio-television and Telecommunications Commission (“CRTC”) adopting policy establishing market-based value for signal
regulatory regime — Policy empowering private local television stations
(“broadcasters”) to negotiate direct compensation for retransmission of signals
by cable and satellite companies (“broadcasting distribution undertakings” or
“BDUs”), as well as right to prohibit BDUs from retransmitting those signals if
negotiations unsuccessful — Whether CRTC having jurisdiction under Broadcasting
Act to implement proposed regime — Broadcasting Act, S.C. 1991, c. 11, ss. 2 ,
3 , 5 , 9 , 10 .
Legislation — Conflicting legislation — CRTC
adopting policy establishing market-based value for signal regulatory regime —
Policy empowering broadcasters to negotiate direct compensation for
retransmission of signals by BDUs, as well as right to prohibit BDUs from
retransmitting those signals if negotiations unsuccessful — Whether proposed
regime conflicting with Copyright Act — Whether Copyright Act limiting
discretion of CRTC in exercising regulatory and licensing powers under
Broadcasting Act — Broadcasting Act, S.C. 1991, c. 11, ss. 2 , 3 , 5 ,
9 , 10 — Copyright Act, R.S.C. 1985, c. C-42, ss. 2 , 21 , 31 , 89 .
Responding
to recent changes to the broadcasting business environment, in 2010 the CRTC sought to
introduce a market-based value for signal regulatory regime, whereby private
local television stations could choose to negotiate direct compensation for the
retransmission of their signals by BDUs, such as cable and satellite
companies. The new regime would empower broadcasters to authorize or prohibit
BDUs from retransmitting their programming services. The BDUs disputed the
jurisdiction of the CRTC to implement such a regime on the basis that it
conflicts with specific provisions in the Copyright Act . As a result,
the CRTC referred the question of its jurisdiction to the Federal Court of
Appeal, which held the proposed regime was within the statutory authority of
the CRTC pursuant to its broad mandate under the Broadcasting Act to
regulate and supervise all aspects of the Canadian broadcasting system, and
that no conflict existed between the regime and the Copyright Act .
Held
(Deschamps, Abella, Cromwell and Karakatsanis JJ. dissenting): The
appeal should be allowed. The proposed regulatory regime is ultra vires the
CRTC.
Per
McLachlin C.J. and LeBel, Fish, Rothstein and Moldaver JJ.: The
provisions of the Broadcasting Act , considered in their entire context,
may not be interpreted as authorizing the CRTC to implement the proposed value for
signal regime.
No
provision of the Broadcasting Act expressly grants jurisdiction to the
CRTC to implement the proposed regime, and it was not sufficient for the CRTC to
find jurisdiction by referring in isolation to policy objectives in s. 3 and
deem that the proposed value for signal regime would be beneficial for the
achievement of those objectives. Establishing any link, however tenuous,
between a proposed regulation and a policy objective in s. 3 of the Act cannot
be a sufficient test for conferring jurisdiction on the CRTC. Policy
statements are not jurisdiction-conferring provisions and cannot serve to
extend the powers of the subordinate body to spheres not granted by Parliament.
Similarly, a broadly drafted basket clause in respect of regulation making
authority (s. 10(1) (k)), or an open-ended power to insert “such terms
and conditions as the [regulatory body] deems appropriate” when issuing
licences (s. 9(1) (h)) cannot be read in isolation, but rather must
be taken in context with the rest of the section in which it is found. Here, none
of the specific fields for regulation set out in s. 10(1) pertain to the
creation of exclusive rights for broadcasters to authorize or prohibit the
distribution of signals or programs or the direct economic relationship between
BDUs and broadcasters. Reading the Broadcasting Act in its entire
context reveals that the creation of such rights is too far removed from the
core purposes intended by Parliament and from the powers granted to the CRTC
under that Act.
Even
if jurisdiction for the proposed value for signal regime could be found within
the text of the Broadcasting Act , the proposed regime would conflict
with specific provisions enacted by Parliament in the Copyright Act . First,
the value for signal regime conflicts with s. 21(1) because it would grant
broadcasters a retransmission authorization right against BDUs that was withheld
by the scheme of the Copyright Act . A broadcaster’s s. 21(1) (c)
exclusive right to authorize, or not authorize, another broadcaster to
simultaneously retransmit its signals does not include a right to authorize or
prohibit a BDU from retransmitting those communication signals. It would be
incoherent for Parliament to set up a carefully tailored signals retransmission
right in s. 21(1) , specifically excluding BDUs from the scope of the
broadcasters’ exclusive rights over the simultaneous retransmission of their
signals, only to enable a subordinate legislative body to enact a functionally
equivalent right through a related regime. The value for signal regime would upset
the aim of the Copyright Act to effect an appropriate balance between authors’
and users’ rights as expressed by Parliament in s. 21(1) .
Second,
further conflict arises between the value for signal regime and the
retransmission rights in s. 31 , which creates an exception to
copyright infringement for the simultaneous retransmission by a BDU of a “work”
carried in local signals. The value for signal regime envisions giving
broadcasters deletion rights, whereby the broadcaster unable to agree with a
BDU about the compensation for the distribution of its programming services would
be entitled to require any program to which it has exclusive exhibition rights
to be deleted from the signals of any broadcaster distributed by the BDU. The
value for signal regime would effectively overturn the s. 31 exception, entitling broadcasters to control the simultaneous
retransmission of works while the Copyright Act specifically excludes
retransmission from the control of copyright owners, including broadcasters. In doing so, it would rewrite the balance between the owners’ and users’ interests as set out
by Parliament in the Copyright Act . Because the CRTC’s value for signal regime is inconsistent with the purpose of the Copyright
Act , it falls outside of the scope of the CRTC’s licensing and regulatory
jurisdiction under the Broadcasting Act .
Section 31(2)(b),
which provides that in order for the exception to copyright to apply the
retransmission must be “lawful under the Broadcasting Act ”, is also not
sufficient to ground the CRTC’s jurisdiction to implement the value for signal
regulatory regime. A general reference to “lawful under the Broadcasting
Act ” cannot authorize the CRTC, acting under open-ended jurisdiction-conferring
provisions, to displace the specific direction of Parliament in the Copyright
Act . Finally, the value for signal regime would create a new right to
authorize and prevent retransmission, in effect, amending the copyright
conferred by s. 21 . Thus the value for signal regime would create a new
type of copyright and would do so without the required Act of Parliament,
contrary to s. 89 .
Per
Deschamps, Abella, Cromwell and Karakatsanis JJ. (dissenting): The
CRTC determined that the proposed regime was necessary to preserve the
viability of local television stations and ensure the fulfillment of the
broadcasting policy objectives set out in s. 3(1) of the Broadcasting
Act . Courts have consistently determined the validity of the CRTC’s
exercises of power under the Broadcasting Act by asking whether the
power was exercised in connection with a policy objective in s. 3(1) . This
broad jurisdiction flows from the fact that the Act contains generally-worded
powers for the CRTC to regulate and supervise all aspects of the Canadian
broadcasting system, to impose licensing conditions, and to make regulations as
the CRTC deems appropriate to implement the objects set out in s. 3(1) .
The
proposed regime is within the CRTC’s regulatory jurisdiction since it is
demonstrably linked to several of the basic operative broadcasting policies in
s. 3 . The regime is merely an extension of the current regime, which
places conditions, including financial ones, on BDUs for the licence to
retransmit local stations’ signals. This broad mandate to set licensing
conditions in furtherance of Canada’s broadcasting policy is analogous to the
CRTC’s broad mandate to set rates, recently upheld by this Court in Bell
Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R.
764.
The
proposed regime does not create a conflict with the Copyright Act . It
does not give local stations a copyright in the retransmission of their
television signals. BDUs derive their right to retransmit signals only from licences
granted pursuant to s. 9 of the Broadcasting Act , and must meet the
conditions imposed by the CRTC on their retransmission licences, including
those set out in the proposed regime. Nothing in either the definition of
“broadcaster” or in s. 21(1) (c) of the Copyright Act
immunizes BDUs from licensing requirements put in place by the CRTC in
accordance with its broadcasting mandate.
The
BDUs’ argument that the proposed regime creates royalties for local signals
contrary to s. 31(2) (d) of the Copyright Act , turns s. 31(2) (d)
on its head. Section 31(2) (d) simply requires that BDUs pay a
royalty to copyright owners for retransmitting “distant signals”. This
provision has nothing to do with whether the BDUs can be required to compensate
local stations for a different purpose, namely, to fulfill the conditions of
their retransmission license under the Broadcasting Act .
Cases Cited
By Rothstein J.
Referred
to: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Reference re Broadcasting Act,
2012 SCC 4, [2012] 1 S.C.R. 142; Barrie Public Utilities v.
Canadian Cable Television Assn., 2003 SCC 28, [2003]
1 S.C.R. 476; CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2; Bell Canada v. Bell
Aliant Regional Communications, 2009 SCC 40, [2009]
2 S.C.R. 764; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities
Board), 2006 SCC 4, [2006] 1 S.C.R. 140; Ontario v. Canadian Pacific Ltd., [1995]
2 S.C.R. 1031; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Théberge v. Galerie
d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336; Mattel, Inc. v. 3894207 Canada Inc.,
2006 SCC 22, [2006] 1 S.C.R. 772; R. v. Ulybel Enterprises Ltd.,
2001 SCC 56, [2001] 2 S.C.R. 867; Pointe-Claire
(City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015; Friends of the Oldman River Society v. Canada (Minister of
Transport), [1992] 1 S.C.R. 3; Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488; Lévis
(City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1
S.C.R. 591; British Columbia (Attorney General) v. Lafarge Canada
Inc., 2007 SCC 23, [2007] 2 S.C.R. 86; CCH Canadian Ltd. v. Law Society
of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339; Society
of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of
Internet Providers, 2004 SCC 45, [2004] 2
S.C.R. 427; Tele-Mobile Co. v.
Ontario, 2008 SCC
12, [2008] 1 S.C.R. 305; Canadian Admiral Corp. v.
Rediffusion, Inc., [1954] Ex. C.R. 382; Rogers Communications
Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012
SCC 35, [2012] 2 S.C.R. 283, [2012] 2 S.C.R. 283.
By Abella and Cromwell JJ. (dissenting)
Lévis
(City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591; R. v. Ulybel
Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867; CKOY
Ltd. v. The Queen, [1979] 1 S.C.R. 2, aff’g (1976), 13 O.R. (2d) 156; Canadian
Radio-Television and Telecommunications Commission v. CTV Television Network Ltd.,
[1982] 1 S.C.R. 530; Capital Cities Communications Inc. v. Canadian Radio-Television
Commission, [1978] 2 S.C.R. 141; Telecommunications Workers Union v.
Canadian Radio-television and Telecommunications Commission, 2003 FCA 381,
[2004] 2 F.C.R. 3; Assn. for Public Broadcasting in British Columbia v.
Canadian Radio-television and Telecommunications Commission, [1981] 1 F.C.
524, leave to appeal refused, [1981] 1 S.C.R. v; Société Radio-Canada v.
Métromédia CMR Montréal Inc. (1999), 254 N.R. 266; Canadian Broadcasting
League v. Canadian Radio-television and Telecommunications Commission,
[1983] 1 F.C. 182, aff’d [1985] 1 S.C.R. 174; Canadian Motion Picture
Distributors Assn. v. Partners of Viewer’s Choice Canada (1996), 137 D.L.R.
(4th) 561; Bell Canada v. Bell Aliant Regional
Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Barrie Public
Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R.
476; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board),
2006 SCC 4, [2006] 1 S.C.R. 140; CCH Canadian Ltd. v. Law Society of Upper
Canada, 2004 SCC 13, [2004] 1 S.C.R. 339; Théberge v. Galerie d’Art du
Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336.
Statutes and Regulations Cited
Broadcasting Act, S.C. 1991, c. 11,
ss. 2 “broadcasting”, “broadcasting undertaking”, “distribution
undertaking”, “program”, “programming undertaking”, 3, 5, 9, 10.
Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61 , 62 .
Copyright Act, R.S.C. 1985, c. C-42,
ss. 2 “broadcaster”, “communication signal”, “compilation”, “copyright”, “dramatic
work”, “telecommunication”, 2.4(1)(b), 3(1), (1.1), 21, 23(1)(c),
31, 71 to 74, 76(1), (3), 89.
Federal Courts Act, R.S.C. 1985,
c. F-7, ss. 18.3 , 28(2) .
Interpretation Act, R.S.C. 1985,
c. I-21, s. 2 “Act”, “enactment”.
Local Signal and Distant Signal Regulations, SOR/89-254, ss. 1, 2.
Radiocommunication Act, R.S.C. 1985,
c. R-2 .
Telecommunications Act, S.C. 1993, c. 38,
s. 27 .
Treaties and Other International
Instruments
Free Trade Agreement between the Goverment of Canada and the
Government of the United States of America, Can.
T.S. 1989 No. 3.
Authors Cited
Canada. Canadian Radio-television and Telecommunications
Commission. Broadcasting Regulatory Policy CRTC 2010-167. Ottawa: The
Commission, 2010.
Canada. House of Commons. Sub-Committee on the Revision of
Copyright of the Standing Committee on Communications and Culture. A
Charter of Rights for Creators: Report of the Sub-Committee on the Revision of
Copyright. Ottawa: House of Commons, 1985.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto:
Butterworths, 1983.
Handa, Sunny, et al. Communications Law in Canada (loose-leaf
ed.). Markham: LexisNexis, 2000 (Including Service Issues 2012).
McKeown, John S.
Fox on Canadian Law of Copyright and Industrial Designs, 4th ed.
Toronto: Thomson/Carswell, 2009 (loose-leaf updated 2012,
release 3).
Sullivan, Ruth. Sullivan
on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
Vaver, David. Intellectual
Property Law: Copyright, Patents, Trade-marks, 2nd ed. Toronto, Ont.: Irwin Law, 2011.
APPEAL
from a judgment of the Federal Court of Appeal (Nadon, Sharlow and Layden-Stevenson JJ.A.), 2011 FCA 64, 413 N.R. 312, 91 C.P.R. (4th)
389, [2011] F.C.J. No. 197 (QL), 2011 CarswellNat 398. Appeal allowed,
Deschamps, Abella, Cromwell and Karakatsanis dissenting.
Neil Finkelstein, Steven G.
Mason and Daniel G. C. Glover, for the appellant Cogeco
Cable Inc.
Gerald L. Kerr-Wilson and Ariel Thomas, for the appellants Rogers Communications
Inc. and TELUS Communications Company.
Kent E. Thomson,
James Doris and Sarah Weingarten, for the appellant Shaw
Communications Inc.
Benjamin Zarnett, Robert
Malcomson, Peter Ruby and Julie Rosenthal, for the respondents Bell
Media Inc. (formerly CTV Globemedia Inc.), V Interactions Inc. and Newfoundland
Broadcasting Co. Ltd.
No
one appeared for the respondent Canwest Television Limited Partnership.
No
one appeared for the intervener.
The
judgment of McLachlin C.J. and LeBel, Fish, Rothstein and Moldaver JJ. was
delivered by
Rothstein J. —
I. Introduction
[1]
The Canadian Radio-television
and Telecommunications Commission (“CRTC”) has authority under the Broadcasting
Act, S.C. 1991, c. 11 , to regulate and supervise the Canadian
broadcasting system. In 2010, the CRTC sought to
introduce a market-based value for signal regulatory regime, whereby private
local television stations (referred to as such or as “broadcasters”) could
choose to negotiate direct compensation for the retransmission of their signals
by broadcasting distribution undertakings (“BDUs”), such as cable and satellite
companies. The new regime would empower broadcasters to authorize or prohibit
BDUs from retransmitting their programming services. The reference question in
this appeal is whether the CRTC has jurisdiction to implement the proposed
regime.
[2]
The Broadcasting Act grants the CRTC wide
discretion to implement regulations and issue licences with a view to
furthering Canadian broadcasting policy as set out in the Broadcasting Act .
However, these powers must be exercised within the statutory framework of the Broadcasting
Act , and also the larger framework including interrelated statutes. This
scheme includes the Copyright Act, R.S.C. 1985, c. C-42 : Bell
ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at
paras. 44-52. As such, the CRTC, as a subordinate legislative body, cannot
enact a regulation or attach conditions to licences under the Broadcasting
Act that conflict with provisions of another related statute.
[3]
In my opinion, the value for signal regime does
just that and is therefore ultra vires.
II. Facts and Procedural History
[4]
Broadcasters acquire, create and produce
television programming, and are licensed by the CRTC to serve a certain
geographic area within the reach of their respective signal transmitters.
BDUs, such as cable or satellite television service providers, pick up the over-the-air
signals of broadcasters and distribute them to the BDUs’ subscribers for a
fee. Even though broadcasters’ signals are free to anyone equipped with a
television and an antenna, more than 90 percent of Canadians receive these
signals as part of their cable service (transcript, at p. 2).
[5]
BDUs must be licensed by the CRTC pursuant to s.
9 of the Broadcasting Act . Under the current regulatory model, the CRTC
requires BDUs to provide certain benefits to broadcasters, in the nature of
mandatory carriage and contributions to a local programming improvement fund
accessible by certain local television stations. However, the broadcasters do
not receive fees directly from the BDUs for the carriage of their signals.
[6]
As noted by the Federal Court of Appeal (“FCA”),
2011 FCA 64, 413 N.R. 312, at para. 6, the CRTC has concluded that the existing
model does not adequately deal with recent changes to the broadcasting business
environment, which have caused advertising revenues for broadcasters to fall,
while the revenues of BDUs have increased. As the FCA observed, the CRTC has
concluded that this has resulted in a significant shift in their relative
market positions and a financial crisis for broadcasters.
[7]
As a solution, the CRTC seeks to implement what
it terms a “value for signal regime”. This regime would permit broadcasters to
negotiate with BDUs the terms upon which the BDUs may redistribute their
signals. These are its main features:
-
Broadcasters would have the right, every three
years, to choose either to negotiate with BDUs for compensation for the right
to retransmit the broadcaster’s programming services, or to continue to operate
under the existing regulatory regime;
-
A broadcaster who participates in the value for
signal regime would forego all existing regulatory protections, including, for
example, mandatory distribution of its signals as part of the basic package of
BDU television services, and the right to require a BDU to delete a non-Canadian
program and substitute it with the comparable program of the broadcaster, where
the two programs are simultaneously broadcast and retransmitted by the BDU;
-
The CRTC would only involve itself in the
negotiations for the value for signal regime if the parties do not negotiate in
good faith or if they request the CRTC to arbitrate;
-
If no agreement is reached between the
broadcaster and the BDU on the value of the distribution of the local
television’s programming services, the broadcaster could require the BDU to
delete any program owned by the broadcaster or for which it has acquired
exclusive contractual exhibition rights from all signals distributed by the BDU
in the broadcaster’s market.
The proposed regime is fully described in Broadcasting
Regulatory Policy CRTC 2010-167 (2010) (“2010 Policy”) (A.R., vol. II, at
p. 1).
[8]
The BDUs disputed the jurisdiction of the CRTC
to implement such a regime on the basis that it conflicts with specific
provisions in the Copyright Act . As a result, the CRTC referred the
following question to the FCA:
Is the Commission empowered, pursuant to its
mandate under the Broadcasting Act , to establish a regime to enable
private local television stations to choose to negotiate with broadcasting
distribution undertakings a fair value in exchange for the distribution of the
programming services broadcast by those local television stations?
A. Federal Court of Appeal — Sharlow J.A. (Layden-Stevenson
J.A. Concurring)
[9]
Sharlow J.A., writing for the majority, found
the proposed regime to be within the statutory authority of the CRTC. She
found that the Broadcasting Act confers a broad mandate on the CRTC to
regulate and supervise all aspects of the Canadian broadcasting system.
Sharlow J.A. rejected the BDUs’ argument that the proposed regime conflicts
with the Copyright Act . She found that s. 21(1) of the Copyright Act
gives a broadcaster a copyright in the signals it broadcasts, including the
sole right to authorize a BDU to retransmit those signals (para. 33). In her
opinion, while s. 31(2) provides that the s. 21 copyright is not infringed by a
BDU when it retransmits a station’s local signal, s. 31(2) (b) provides that
the retransmission must be “lawful under the Broadcasting Act ” (para.
38). She concluded that “the BDUs’ statutory retransmission rights in subsection
31(2) of the Copyright Act [are] subject to paragraph 31(2) (b), [and
that] Parliament has ranked the objectives of Canada’s broadcasting policy
ahead of those statutory retransmission rights” (para. 40).
B. Federal Court of Appeal — Nadon J.A. (Dissenting)
[10]
In Nadon J.A.’s view, the proposed value for
signal regime is ultra vires the powers of the CRTC because it conflicts
with Parliament’s “clear statement in paragraph 31(2) (d) of the Copyright
Act that royalties must be paid only for the retransmission of distant
signals and not for the retransmission of local signals” (para. 49). In
his view, Parliament’s expressed intention to treat local and distant signals
differently is a limit on the CRTC’s jurisdiction to impose conditions under
the Broadcasting Act (para. 73). Given the exhaustiveness of the
statutory copyright law, in Nadon J.A.’s opinion, the CRTC’s regime must be ultra
vires (para. 85).
III. Analysis
[11]
The scope of the CRTC’s jurisdiction under the Broadcasting
Act must be interpreted according to the modern approach to statutory
interpretation. Per Elmer A. Driedger’s formulation, adopted multiple
times by this Court,
the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament.
(See, e.g., Bell ExpressVu, at para. 26, per
Iacobucci J., citing E. A. Driedger, Construction of Statutes (2nd ed.
1983), at p. 87.)
[12]
In addition,
.
. . where the provision under consideration is found in an Act that is itself a
component of a larger statutory scheme, the surroundings that colour the words
and the scheme of the Act are more expansive.
(Bell
ExpressVu, at para. 27)
The entire context of the provision
thus includes not only its immediate context but also other legislation that
may inform its meaning (R. Sullivan, Sullivan on the Construction of
Statutes (5th ed. 2008), at p. 411).
[13]
In my respectful opinion, for two reasons, the
provisions of the Broadcasting Act , considered in their entire context,
may not be interpreted as authorizing the CRTC to implement the proposed value
for signal regime. First, a contextual reading of the provisions of the Broadcasting
Act themselves reveals that they were not meant to authorize the CRTC to
create exclusive rights for broadcasters to control the exploitation of their
signals or works by retransmission. Second, the proposed regime would conflict
with specific provisions enacted by Parliament in the Copyright Act .
A. The CRTC’s Jurisdiction Under the Broadcasting Act
[14]
The reference question asks whether the CRTC has
the jurisdiction to implement the proposed value for signal regime. Answering
the question requires interpreting the powers granted to the CRTC under the Broadcasting
Act and establishing whether the Copyright Act limits the discretion
of the CRTC in the exercise of its regulatory and licensing powers. The
relevant sections of the Broadcasting Act and of the Copyright Act
are annexed to these reasons (see Appendix).
[15]
There is no doubt that the licensing and the
regulation-making powers granted to the CRTC are broad. The Broadcasting
Act describes the mission of the CRTC as regulating and supervising “all
aspects of the Canadian broadcasting system with a view to implementing the
broadcasting policy set out in subsection 3(1) ” (s. 5(1) ).
[16]
The powers granted to the CRTC are found in ss.
9 and 10 of the Broadcasting Act . Section 9 grounds the CRTC’s
licensing power. Among other things, it gives the CRTC the authority to
establish classes of licences, issue licences and require licensees to perform
certain acts “in furtherance of its objects”. Under s. 9(1)(b)(i),
the issuance of the licences may be subject to such terms and conditions “as
the Commission deems appropriate for the implementation of the broadcasting
policy set out in subsection 3(1) ”.
[17]
Section 10 confers on the CRTC the power to make
regulations. It allows the CRTC to make regulations “in furtherance of its
objects” and enumerates 10 specific areas for regulations. On their face,
these pertain mainly to such matters as setting the standards for programs, the
allocation of broadcasting time for different types of content and the carriage
of certain programming services by distribution undertakings. However, s. 10(1)(k) is a basket clause
granting the CRTC the residual authority to make regulations “respecting such
other matters as it deems necessary for the furtherance of its objects”.
[18]
Section 3(1) of the Broadcasting Act
declares at length the broadcasting policy for Canada, which this Court
summarized in Reference re Broadcasting Act, 2012 SCC 4, [2012] 1 S.C.R. 142 (“ISP Reference”),
at para. 4, as:
. . . the policy objectives listed under s. 3(1)
of the Act focus on content, such as the cultural enrichment of Canada, the
promotion of Canadian content, establishing a high standard for original
programming, and ensuring that programming is diverse.
[19]
In substance, the value for signal regime would
regulate the economic relationships between BDUs and broadcasters. The salient
feature is that the CRTC would grant individual broadcasters an exclusive right
to require deletion of the programming to which they hold exhibition rights
from all signals transmitted by the BDU. This program deletion right is intended
to give the broadcasters the necessary leverage to require compensation from
the BDUs.
[20]
No provision of the Broadcasting Act
expressly grants jurisdiction to the CRTC to implement the proposed regime.
However, the broadcasters submit that ss. 9(1) (b)(i) and 9(1) (h)
empower the CRTC to dictate the terms of the carriage relationship between
broadcasters and BDUs, in furtherance of Canadian broadcasting policy (R.F., at
para. 65). The broadcasters submit that the power to do this also exists under
s. 10(1) (g), which empowers the CRTC to make regulations “respecting the
carriage of any foreign or other programming services by distribution
undertakings” and s. 10(1) (k) which allows regulations to be made
“respecting such other matters as [the CRTC] deems necessary for the
furtherance of its objects”.
[21]
In its 2010 Policy, the CRTC determined:
. . . in order to fulfil the policy objectives
set out in section 3(1) of the Act, the system needs revision so as to
permit privately-owned television broadcasters to negotiate with BDUs to
establish the fair value of the product provided by those broadcasters to BDUs.
[para. 163]
The CRTC referred
specifically only to s. 3(1) (e) and (f) of the Broadcasting
Act (see para. 152 of the 2010 Policy). In their factum, the broadcasters
add s. 3(1) (g), (s) and (t), 9 and 10 (R.F., at paras. 63-65,
69, 74-79 and 87). The CRTC did not refer to the jurisdiction-conferring
provisions in ss. 9 and 10 .
[22]
Policy statements, such as the declaration of
Canadian broadcasting policy found in s. 3(1) of the Broadcasting Act ,
are not jurisdiction-conferring provisions. They describe the objectives of
Parliament in enacting the legislation and, thus, they circumscribe the
discretion granted to a subordinate legislative body (Sullivan, at pp. 387-88
and 390-91). As such, declarations of policy cannot serve to extend the powers
of the subordinate body to spheres not granted by Parliament in jurisdiction-conferring
provisions.
[23]
In my opinion, to find jurisdiction, it was not
sufficient for the CRTC to refer in isolation to policy objectives in s. 3 and
deem that the proposed value for signal regime would be beneficial for the
achievement of those objectives. As stated by Gonthier J., writing for the
majority of this Court in Barrie Public Utilities v. Canadian Cable
Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476:
. . . courts and tribunals must invoke
statements of legislative purpose to elucidate, not to frustrate, legislative
intent. In my view, the CRTC relied on policy objectives to set aside
Parliament’s discernable intent as revealed by the plain meaning of s. 43(5),
s. 43 generally and the Act as a whole. [para. 42]
It is therefore necessary
to consider the jurisdiction granted to the CRTC under ss. 9 and 10 of the Act
to attach conditions to licences and to make regulations.
[24]
The broadcasters argue that the test for
the CRTC’s jurisdiction in enacting regulations under s. 10 of the Broadcasting
Act is whether the regulation objectively refers to one of the objectives
in s. 3 . They rely on this Court’s decision in CKOY Ltd.
v. The Queen, [1979] 1 S.C.R. 2, where the majority of the Court, per
Spence J., stated, at p. 11:
. . . the validity of any regulation enacted in
reliance upon s. 16 [now s. 10 ] must be tested by determining whether the
regulation deals with a class of subject referred to in s. 3 of the statute and
that in doing so the Court looks at the regulation objectively.
[25]
In my opinion, CKOY cannot stand for the
proposition that establishing any link, however tenuous, between a proposed
regulation and a policy objective in s. 3 of the Act is a sufficient
test for conferring jurisdiction on the CRTC. Such an approach would conflict
with the principle that policy statements circumscribe the discretion granted
to a subordinate legislative body.
[26]
The difference between general regulation making
or licensing provisions and true jurisdiction-conferring provisions is evident
when this case is compared with Bell Canada v. Bell Aliant Regional
Communications, 2009 SCC 40, [2009] 2 S.C.R. 764. In Bell Aliant,
this Court was asked to determine whether the creation and use of certain
deferral accounts lay within the scope of the CRTC’s express power to determine
whether rates set by telecommunication companies are just and reasonable. The
CRTC’s jurisdiction over the setting of rates under s. 27 of the Telecommunications
Act, S.C. 1993, c. 38 , provides that rates must be just and reasonable.
Under that section, the CRTC is specifically empowered to determine compliance
with that requirement and is conferred the express authority to “adopt any
method or technique that it considers appropriate” for that purpose (s.
27(5) ).
[27]
This broad, express grant of jurisdiction
authorized the CRTC to create and use the deferral accounts at issue in that
case. This stands in marked contrast to the provisions on which the
broadcasters seek to rely in this case, which consist of a general power to
make regulations under s. 10(1)(k) and a broad licensing power under s.
9(1)(b)(i). Jurisdiction-granting provisions are not analogous to
general regulation making or licensing authority because the former are express
grants of specific authority from Parliament while the latter must be
interpreted so as not to confer unfettered discretion not contemplated by the
jurisdiction-granting provisions of the legislation.
[28]
That is the fundamental point. Were the only
constraint on the CRTC’s powers under s. 10(1) to be found in whether the
enacted regulation goes towards a policy objective in s. 3(1) , the only limit
to the CRTC’s regulatory power would be its own discretionary determination of
the wisdom of its proposed regulation in light of any policy objective in s.
3(1) . This would be akin to unfettered discretion. Rather,
discretion
is to be exercised within the confines of the statutory regime and principles
generally applicable to regulatory matters, for which the legislature is
assumed to have had regard in passing that legislation.
(ATCO Gas
and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4,
[2006] 1 S.C.R. 140, at para. 50, per Bastarache J.)
[29]
A broadly drafted basket clause, such as s.
10(1)(k), or an open-ended power to insert “such terms and conditions as
the [regulatory body] deems appropriate” (s. 9(1)(h)) cannot be read in
isolation: ATCO, at para. 46. Rather, “[t]he content of a provision ‘is
enriched by the rest of the section in which it is found . . .’” (Ontario v.
Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 64, per
Gonthier J., citing R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 647-48; see
also Sullivan, at pp. 228-29). In my opinion, none of the specific fields for
regulation set out in s. 10(1) pertain to the creation of exclusive rights for
broadcasters to authorize or prohibit the distribution of signals or programs,
or to control the direct economic relationship between the BDUs and the
broadcasters.
[30]
However, the broadcasters submit that s. 10(1)(g),
which enables the CRTC to make regulations “respecting the carriage of any
foreign or other programming services”, and s. 9(1)(h), which empowers
the CRTC to require a licensed BDU “to carry . . . programming services
specified by the Commission”, together with the broad wording of ss. 10(1)(k)
and 9(1)(b)(i), empower the CRTC to “dictate the terms of the carriage
relationship between broadcasters and BDUs” (R.F., at para. 65). Thus, the
CRTC would, in their opinion, have jurisdiction to implement the proposed
regime.
[31]
I cannot agree. On their face, ss. 9(1)(h) and 10(1)(g) could, for example, allow the CRTC to require the BDUs to
distribute to Canadians certain types of programs, arguably, because they are
deemed to be important for the country’s cultural fabric. However, it is a far
cry from concluding that, coupled with ss. 10(1)(k) and 9(1)(b)(i),
they entitle the CRTC to create exclusive control rights for broadcasters.
[32]
This interpretation is consistent with a reading
of the Act in its entire context. The Broadcasting Act has a primarily
cultural aim. The other powers enumerated in s. 10(1) deal with such matters
as the allocation of broadcasting time and the setting of standards for
programs. In addition, the objectives of the Broadcasting Act , declared
in s. 3(1) , when read together, target “the cultural enrichment of Canada, the
promotion of Canadian content, establishing a high standard for original
programming, and ensuring that programming is diverse” (ISP Reference,
at para. 4). While such declarations of policy may not be
invoked as independent grants of power, they should be given due weight in
interpreting specific provisions of an Act: Sullivan, at pp. 388 and 390-91. Parliament
must be presumed to have empowered the CRTC to work towards implementing these
cultural objectives; however, the regulatory means granted to the CRTC to
achieve these objectives fall short of creating exclusive control rights.
[33]
In sum, nowhere in the Act is there a reference
to the creation of exclusive control rights over signals or programs. Reading
the Broadcasting Act in its entire context reveals that the creation of
such rights is too great a stretch from the core purposes intended by Parliament
and from the powers granted to the CRTC under the Broadcasting Act .
B. The Larger Statutory Scheme — Conflict with the Copyright
Act
(1) Connection Between the Broadcasting Act
and the Copyright Act
[34]
Even if jurisdiction for the proposed value for
signal regime could be found within the text of the Broadcasting Act ,
that would not resolve the question in this reference as the Broadcasting
Act is part of a larger statutory scheme that includes the Copyright Act
and the Telecommunications Act . As Sunny Handa et al. explain, the Telecommunications
Act and the Radiocommunication Act, R.S.C. 1985, c. R-2 , are the
main statutes governing carriage, and the Broadcasting Act deals with
content, which is “the object of ‘carriage’” (S. Handa
et al., Communications Law in Canada (loose-leaf ed.), at
§3.21). In Bell ExpressVu, at para. 52, Justice Iacobucci also
considered the Copyright
Act when interpreting a provision of the Radiocommunication Act ,
saying that “there is a connection between these two statutes”. Considering
that the Broadcasting Act and the Radiocommunication Act are
clearly part of the same interconnected statutory scheme, it follows, in my
view, that there is a connection between the Broadcasting Act and the Copyright
Act as well. The three Acts (plus the Telecommunications
Act ) are part of an interrelated scheme.
[35]
Indeed, the Broadcasting
Act regulates “program[s]” that are “broadcast” for reception by the
Canadian public (see s. 2(1) , definitions of “broadcasting” and of “program”),
with a view to implementing the Canadian broadcasting policy described in s.
3(1) of the Act. Generally speaking, “[t]he Broadcasting
Act is primarily concerned with the programmed content delivered by means
of radio waves or other means of telecommunication to the public” (Handa et
al., at §5.5).
[36]
The Copyright Act
is concerned both with encouraging creativity and providing reasonable access
to the fruits of creative endeavour. These objectives are furthered by a
carefully balanced scheme that creates exclusive economic rights for different
categories of copyright owners in works or other protected subject matter,
typically in the nature of a statutory monopoly to prevent anyone from
exploiting the work in specified ways without the copyright owner’s consent. It
also provides user rights such as fair dealing and specific exemptions that
enable the general public or specific classes of users to access protected
material under certain conditions. (See, e.g., Théberge v. Galerie d’Art du Petit Champlain inc.,
2002 SCC 34, [2002] 2 S.C.R. 336, at paras. 11-12 and 30; Mattel, Inc. v.
3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772, at para. 21; D.
Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks
(2nd ed. 2011), at pp. 34 and 56.) Among the categories of subject matter
protected by copyright are the rights of broadcasters in communication signals
(see ss. 2 “copyright” and 21 of the Copyright Act ). In addition,
“program[s]” within the meaning of the Broadcasting Act , are often pre-recorded
original content which may constitute protected works, namely “dramatic
work[s]” or “compilation[s]” thereof, under the Copyright Act : see, e.g., discussion in J. S. McKeown, Fox on Canadian Law of
Copyright and Industrial Designs (4th ed. (loose-leaf)), at para. 15:3(a).
[37]
Although the Acts have different aims, their
subject matters will clearly overlap in places. As Parliament is presumed to
intend “harmony, coherence, and consistency between statutes dealing with the
same subject matter” (R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001]
2 S.C.R. 867, at para. 52; Sullivan, at pp. 325-26), two provisions applying to
the same facts will be given effect in accordance with their terms so long as
they do not conflict.
[38]
Accordingly, where
multiple interpretations of a provision are possible, the presumption of
coherence requires that the two statutes be read together so as to avoid
conflict. Lamer C.J. wrote in Pointe-Claire (City) v. Quebec (Labour Court),
[1997] 1 S.C.R. 1015, at para. 61:
There is no doubt that the principle that
statutes dealing with similar subjects must be presumed to be coherent means
that interpretations favouring harmony among those statutes should prevail over
discordant ones . . . .
[39]
In addition, “[o]rdinarily, . . . an
Act of Parliament must prevail over inconsistent or conflicting subordinate
legislation” (Friends of the Oldman River Society v. Canada (Minister of
Transport), [1992] 1 S.C.R. 3, at p. 38). Consequently, as it would be
impermissible for the CRTC, a subordinate legislative body, to implement
subordinate legislation in conflict with another Act of Parliament, the open-ended
jurisdiction-conferring provisions of the Broadcasting Act cannot be
interpreted as allowing the CRTC to create conflicts with the Copyright Act .
[40]
It is therefore necessary to first determine if
a conflict arises.
(2) Types of Conflict
[41]
For the purposes of statutory interpretation,
conflict is defined narrowly. It has been said that overlapping provisions
will be given effect according to their terms, unless they “cannot stand
together” (Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488, at p. 499
per Anglin J.).
[42]
In Lévis (City) v. Fraternité des policiers
de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, the Court was concerned
with incoherence between provisions of two statutes emanating from the same
legislature. Bastarache J., writing for the majority, defined conflict, at
para. 47:
The
test for determining whether an unavoidable conflict exists is well stated by
Professor Côté in his treatise on statutory interpretation:
According
to case law, two statutes are not repugnant simply because they deal with
the same subject: application of one must implicitly or explicitly preclude
application of the other.
(P.-A. Côté, The Interpretation
of Legislation in Canada (3rd ed. 2000), at p. 350)
Thus, a law which provides for the expulsion of a
train passenger who fails to pay the fare is not in conflict with another law that
only provides for a fine because the application of one law did not exclude the
application of the other (Toronto Railway Co. v. Paget (1909), 42 S.C.R.
488). Unavoidable conflicts, on the other hand, occur when two pieces of
legislation are directly contradictory or where their concurrent application
would lead to unreasonable or absurd results. A law, for example, which
allows for the extension of a time limit for filing an appeal only before it
expires is in direct conflict with another law which allows for an extension to
be granted after the time limit has expired (Massicotte v. Boutin,
[1969] S.C.R. 818). [Emphasis added.]
[43]
Absurdity also refers to situations where the
practical effect of one piece of legislation would be to frustrate the purpose
of the other (Lévis, at para. 54; Sullivan, at p. 330).
[44]
This view is not inconsistent with the approach
to conflict adopted in federalism jurisprudence. For the purposes of the
doctrine of paramountcy, this Court has recognized two types of conflict. Operational
conflict arises when there is an impossibility of compliance with both
provisions. The other type of conflict is incompatibility of purpose. In
the latter type, there is no impossibility of dual compliance with the letter
of both laws; rather, the conflict arises because applying one provision would
frustrate the purpose intended by Parliament in another. See, e.g., British
Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2
S.C.R. 86, at paras. 77 and 84.
[45]
Cases applying the doctrine of federal
paramountcy present some similarities in defining conflict as either
operational conflict or conflict of purpose (Friends of the Oldman River
Society, at p. 38). These definitions of legislative conflict are
therefore helpful in interpreting two statutes emanating from the same
legislature. The CRTC’s powers to impose licensing conditions and make
regulations should be understood as constrained by each type of conflict.
Namely, in seeking to achieve its objects, the CRTC may not choose means that
either operationally conflict with specific provisions of the Broadcasting
Act , the Radiocommunication Act , the Telecommunications Act ,
or the Copyright Act ; or which would be incompatible with the purposes
of those Acts.
(3) The Allocation of Rights Under the Copyright
Act
(a) Section 21
[46]
The BDUs contend that the CRTC’s proposed value
for signal regime conflicts with the retransmission regimes specifically
established in ss. 21(1) (c) and 31(2) of the Copyright Act .
[47]
It is necessary to describe the Copyright Act ’s
regimes at some length. It will become apparent from this description that, in
my respectful view, the analysis of the Copyright Act conducted by the
majority of the FCA is problematic.
[48]
The BDUs first submit that s. 21(1) of the Copyright
Act conflicts with the value for signal regime. Section 21(1) grants
broadcasters a limited copyright in the over-the-air signals they broadcast.
This copyright gives the broadcaster the sole right to authorize or to do four
acts in relation to a communication signal or any substantial part of it:
(a) to
fix it;
(b) to
reproduce any fixation of it that was made without the broadcaster’s consent;
(c) to
authorize another broadcaster to retransmit it to the public simultaneously
with its broadcast; and
(d) in
the case of a television communication signal, to perform it in a place open to
the public on payment of an entrance fee,
and to authorize any act described in paragraph (a),
(b) or (d).
[49]
The aspect relevant for this appeal is in para.
(c). Under this paragraph, a broadcaster has the sole right to
authorize another broadcaster to retransmit simultaneously a
communication signal. Section 2 of the Copyright Act defines
“broadcaster” as
a body that, in the course of operating a
broadcasting undertaking, broadcasts a communication signal in accordance with
the law of the country in which the broadcasting undertaking is carried on, but
excludes a body whose primary activity in relation to communication signals is
their retransmission.
[50]
The underlined portion of the definition refers
to BDUs. BDUs are not a “broadcaster” within the meaning of the Copyright
Act because their primary activity in relation to communication signals is
their retransmission. Thus, the broadcaster’s s. 21(1) (c) right to
authorize, or not authorize, another broadcaster to simultaneously retransmit
its signals does not apply against BDUs. In other words, under s. 21 of the Copyright
Act , a broadcaster’s exclusive right does not include a right to authorize
or prohibit a BDU from retransmitting its communication signals.
(b) Section 31
[51]
In addition to their s. 21 rights in
communication signals, broadcasters may hold other retransmission rights under
the Copyright Act . As mentioned, a pre-recorded television program
is often copyright subject matter that can be protected as an original
“dramatic work” or a “compilation” thereof (s. 2 of the Copyright Act ).
The broadcaster, as a corporation, may hold copyright in the pre-recorded
program or compilation of programs carried in its signals, either as the
employer of the author of such a work or as an assignee of copyright from the
original author.
[52]
The Copyright Act seeks to regulate the
economic rights in communication signals, as well as the retransmission of
works by BDUs. The BDUs contend that the value for signal regime would
conflict with the retransmission regime for works set out in s. 31 of the Copyright
Act . The proposed regime would enable broadcasters to control the
simultaneous retransmission of programs, by granting them the right to
require deletion of any program in which they own or control the
copyright from all signals distributed by the BDU, if no agreement is reached
on compensation for the simultaneous retransmission of the broadcaster’s
programming services.
[53]
The Copyright Act in s. 3(1) (f)
confers on the owner of copyright in a work the exclusive right to communicate
it to the public by telecommunication. Section 3(1) (f) provides:
3. (1) For
the purposes of this Act, “copyright”, in relation to a work, means the sole
right . . .
. . .
(f) in
the case of any literary, dramatic, musical or artistic work, to communicate
the work to the public by telecommunication,
. . .
“[T]elecommunication”, in s. 2 of
the Act, is broadly defined to include
any transmission of . . . intelligence of any
nature by wire, radio, visual, optical or other electromagnetic system.
[54]
These general words would at first blush confer
on the copyright owner, including a broadcaster in that capacity, the right to
control the retransmission of the works in which it holds copyright. However,
s. 31(2) of the Copyright Act proceeds in detailed fashion to
circumscribe the right of copyright owners to control the retransmission
of literary, dramatic, musical or artistic works carried in signals. “[S]ignal”
is defined for the purposes of s. 31(2) to mean “a signal that carries a
literary, dramatic, musical or artistic work and is transmitted for free
reception by the public by a terrestrial radio or terrestrial television
station” (see s. 31(1) ). Section 31(1) defines “retransmitter” as “a person who performs a function comparable to that of a cable
retransmission system”.
[55]
Section 31(2) provides:
31.
. . .
(2)
It is not an infringement of copyright for a retransmitter to communicate to
the public by telecommunication any literary, dramatic, musical or artistic
work if
(a) the
communication is a retransmission of a local or distant signal;
(b) the
retransmission is lawful under the Broadcasting Act ;
(c) the
signal is retransmitted simultaneously and without alteration, except as
otherwise required or permitted by or under the laws of Canada;
(d) in
the case of the retransmission of a distant signal, the retransmitter has paid
any royalties, and complied with any terms and conditions, fixed under this
Act; and
(e) the retransmitter
complies with the applicable conditions, if any, referred to in paragraph (3)(b).
[56]
Read together, ss. 31(1) and 31(2) create an exception
to the exclusive right of the copyright owners of literary, dramatic, musical
or artistic works to control the communication of their works to the public by
telecommunication. The exception, or user’s right, in effect, entitles BDUs to
retransmit those works without the copyright owners’ consent, where the
conditions set out in paras. (a) through (e) are met. Paragraph
(b) provides that the retransmission must be lawful under the Broadcasting
Act . I will come back to the meaning of this particular condition.
[57]
In the case of works carried in distant signals
only, the section provides copyright owners with a right to receive royalties
as payment for the simultaneous retransmission of those works by a BDU. The
royalties are determined by the Copyright Board, on the basis of tariffs filed
by collective societies, pursuant to the regime detailed in ss. 71 to 74 of the
Copyright Act . Under s. 31(2), works carried in local signals attract
no royalty when retransmitted in accordance with all conditions of that
section. The Governor in Council has defined “local signal” as the signal of a
terrestrial station reaching all or a portion of the service area of a
retransmitter. A “distant signal” is a signal that is not a local signal. See
ss. 1 and 2 of Local Signal and Distant Signal Regulations, SOR/89-254.
[58]
It bears underlining that, in the case of works
carried in both local and distant signals, the copyright owner has no right
to prohibit the simultaneous retransmission of the work; recourse is
limited to receiving through a collective society the prescribed royalty, but
only for the simultaneous retransmission of works carried in distant signals
(ss. 76(1) and 76(3) of the Copyright Act ). On the one hand, the
copyright owner is granted a general right to retransmit the work. This
retransmission right is part of the right, under s. (3)(1)(f), to
communicate the work by telecommunication to the public. On the other hand,
the owner’s general right to retransmit is restricted by a carve-out in s.
31(2) of the Copyright Act , which effectively grants to a specific class
of retransmitters two retransmission rights. The first right lets these users
simultaneously retransmit without a royalty payment, works carried in a local
signal. The second right lets them simultaneously retransmit works carried in
distant signals, but only subject to the payment of royalties under a form of
compulsory licence regime (Copyright Act, s. 31(2) (a) and (d)).
Both user rights are, subject to s. 31(2) , beyond the owner’s control.
[59]
In sum, under the Copyright Act ’s
retransmission regimes for communication signals and for works:
- Broadcasters have a limited exclusive right in their signals
(s. 21 );
- Broadcasters do not have an exclusive right in signals
against BDUs;
- BDUs have the right to simultaneously retransmit works
carried in local signals without authorization and without payment to the
copyright owner;
- Owners of copyright in those works, including broadcasters
in that capacity, do not have the right to block retransmission of local or
distant signals carrying their works;
- The Copyright Board has jurisdiction to value the
compulsory licence royalty for the simultaneous retransmission of works carried
in distant signals;
(4) Finding Conflict
[60]
The CRTC’s proposed value for signal regime
would enable broadcasters to negotiate compensation for the retransmission by
BDUs of their signals or programming services, regardless of whether or not
they carry copyright protected “work[s]”, and regardless of the fact that any
such works are carried in local signals for which the Copyright Act
provides no compensation. Importantly, contrary to the retransmission regimes
of the Copyright Act , the value for signal regime proposed by the CRTC
would grant individual broadcasters, should they elect to be governed by this
regime, the right to prohibit the simultaneous retransmission of their
programs.
[61]
As mentioned, the presumption of coherence
between related Acts of Parliament requires avoiding an interpretation of a
provision that would introduce conflict into the statutory scheme. In this
case, the presumption of coherence requires that if the CRTC’s proposed
regulatory regime would create such conflict with the specific expressions of
Parliament’s intent under the Copyright Act , it must be ultra vires.
Sections 21 and 31(2) of the Copyright Act are relevant.
[62]
First, the value for signal regime conflicts
with s. 21(1) of the Copyright Act because it would grant
broadcasters a retransmission authorization right against BDUs that was withheld
by the scheme of the Copyright Act .
[63]
Looking only at the letter of the provision, s.
21 expressly speaks only to the relationship between a broadcaster and another
broadcaster and not the relationship between a broadcaster and a retransmitter.
As such, it is arguable that nothing in s. 21 purports to prevent another
regulator from regulating the terms for carriage of a broadcaster’s television
signal by the BDUs, leaving it open to the CRTC, provided it is authorized to
do so under the Broadcasting Act , to establish a value for signal regime
without conflicting with s. 21 .
[64]
However, s. 21 cannot be considered devoid of
its purpose. This Court has characterized the purpose of the Copyright Act
as a balance between authors’ and users’ rights. The same balance applies to
broadcasters and users. In Théberge, Binnie J. recognized that the Copyright
Act
is
usually presented as a balance between promoting the public interest in the
encouragement and dissemination of works of the arts and intellect and
obtaining a just reward for the creator (or, more accurately, to prevent
someone other than the creator from appropriating whatever benefits may be
generated). [para. 30]
(See
also CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004]
1 S.C.R. 339, at paras. 10 and 23.)
[65]
This point was reiterated in Society of
Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet
Providers, 2004 SCC 45, [2004] 2 S.C.R. 427. In that case, the Court
considered whether, for the purposes of the Copyright Act , Internet
Service Providers “communicate [works] to the public” when such works are
requested by their subscribers — thereby infringing copyright in such works.
The Court was required to interpret s. 2.4(1) (b) of the Copyright Act ,
which provides that
a person whose only act in respect of
the communication of a work or other subject-matter to the public consists of
providing the means of telecommunication necessary for another person to so
communicate the work or other subject-matter does not communicate that work or
other subject-matter to the public.
[66]
In rejecting the argument that s. 2.4(1) (b),
as an exemption, should be read narrowly, the majority, per Binnie J.,
held that
[u]nder the Copyright Act , the
rights of the copyright owner and the limitations on those rights should be
read together to give “the fair and balanced reading that befits remedial
legislation”. [para. 88]
The Court
recognized that “[s]ection 2.4(1)(b) is not a loophole but an important
element of the balance struck by the statutory copyright scheme” (para. 89).
The Court therefore confirmed its earlier teaching in Théberge that the
policy balance established by the Copyright Act is maintained also
by “giving due weight to [the] limited nature” of the
rights of creators (Théberge, at para. 31).
[67]
In my view, s. 21(1) represents the expression
by Parliament of the appropriate balance to be struck between broadcasters’
rights in their communication signals and the rights of the users, including
BDUs, to those signals. It would be incoherent for Parliament to set up a
carefully tailored signals retransmission right in the Copyright Act ,
specifically excluding BDUs from the scope of the broadcasters’ exclusive
rights over the simultaneous retransmission of their signals, only to enable a
subordinate legislative body to enact a functionally equivalent right through a
related regime. The value for signal regime would upset the aim of the Copyright
Act to effect an appropriate “balance between promoting the public interest
in the encouragement and dissemination of works of the arts and intellect and
obtaining a just reward for the creator” (Théberge, at para. 30).
[68]
Second, while the conflict of the proposed
regime with s. 21 is sufficient to render the regime ultra vires,
further conflict arises in my opinion between the value for signal regime and
the retransmission rights in works set out in s. 31 of the Copyright
Act .
[69]
As discussed above, s. 31 creates an exception
to copyright infringement for the simultaneous retransmission by a BDU of a work
carried in local signals. However, the value for signal regime envisions
giving broadcasters deletion rights, whereby the broadcaster unable to agree
with a BDU about the compensation for the distribution of its programming
services would be entitled to require any program to which it has exclusive
exhibition rights to be deleted from the signals of any broadcaster distributed
by the BDU. As noted above, “program[s]” are often “work[s]” within the meaning of the Copyright
Act . The value for signal regime would entitle broadcasters to control the
simultaneous retransmission of works, while the Copyright Act
specifically excludes it from the control of copyright owners, including
broadcasters.
[70]
Again, although the
exception to copyright infringement established in s. 31 on its face does
not purport to prohibit another regulator from imposing conditions, directly or
indirectly, on the retransmission of works, it is necessary to look behind the
letter of the provision to its purpose, which is to balance the entitlements of
copyright holders and the public interest in the dissemination of works. The value for signal regime would effectively overturn the s. 31
exception to the copyright owners’ s. 3(1) (f) communication right. It
would disrupt the balance established by Parliament.
[71]
The recent legislative history of the Copyright
Act supports the view that Parliament made deliberate choices in respect of
copyright and broadcasting policy. The history evidences Parliament’s intent
to facilitate simultaneous retransmission of television programs by cable and
limit the obstacles faced by the retransmitters.
[72]
Leading up to the 1997 amendment to the Copyright
Act (Bill C-32), under which s. 21 was introduced, broadcasters made
submissions to the Standing Committee on Canadian Heritage seeking signal
rights. They contended that they should be granted the right to authorize, or
refuse to authorize, the retransmission of their signals by others, including
BDUs. The broadcasters, in fact, argued expressly against the narrow right
that Parliament eventually adopted as s. 21(1) (c). See, e.g.,
submissions of CTV to Standing Committee on Canadian Heritage, “Re: Bill C-32”
(August 30, 1996) (A.R., vol. VII, at p. 68); submissions of WIC Western
International Communications Ltd. (1996) (A.R., vol. VII, at p. 15);
submissions of the British Columbia Association of Broadcasters, “Bill C-32,
the Copyright Reform Legislation” (August 28, 1996) (A.R., vol. VII, at p. 20);
submissions of the Canadian Association of Broadcasters, “Clause by Clause
Recommendations for Amendments to Bill C-32” (November 27, 1996) (A.R.,
vol. VII, at p. 77). In addition, although this section has not been amended
since 1997, ongoing consultations between Parliament and the broadcasters show
continued requests from the latter to include the right to authorize BDU
retransmissions. See, e.g., submissions of CTVglobemedia, “Re: Government’s 2009
Copyright Consultations” (September 11, 2009) (A.R., vol. IX, at pp. 35-37);
Canadian Association of Broadcasters, “A Submission to the House of Commons
Standing Committee on Canadian Heritage With Respect to A Statutory Review of
the Copyright Act ” (September 15, 2003) (A.R., vol. IX, at p. 28).
[73]
Notwithstanding
successive amendments to the Copyright Act , Parliament has not amended
s. 21 in the fashion requested by the broadcasters. Parliament’s silence is
not necessarily determinative of legislative intention. However, in the context of repeated urging from the broadcasters, Parliament’s silence strongly suggests
that it is Parliament’s intention to maintain the balance struck by s. 21 (see Tele-Mobile
Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305, at para. 42, per
Abella J.).
[74]
The same purposeful balancing is evidenced in
the legislative history of the s. 31 regime for the retransmission of works.
The predecessor to the current s. 3(1) (f) guaranteed copyright holders
an exclusive right to communicate works by radio communication.
Jurisprudence interpreted the radio communication right as excluding
transmissions by cable: Canadian Admiral Corp. v. Rediffusion, Inc.,
[1954] Ex. C.R. 382. Section 3(1) (f) was amended in 1988 to confer the
exclusive right to “communicate the work to the public by telecommunication”
to reflect the obligations entered into by Canada under the Free Trade
Agreement between the Government of Canada and the Government of the United
States of America, Can. T.S. 1989 No. 3 (see Canada-United States Free
Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61 -62 ; see also Rogers
Communications Inc. v. Society of Composers, Authors and Music Publishers of
Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at paras. 36-37, and McKeown, at
para. 3:2(b)). The change from radio communication to telecommunication meant
that cable companies were now liable for copyright infringement when they
communicate copyright-protected works to the public.
[75]
However, at the same time, Parliament
specifically addressed the question of whether the simultaneous retransmission
of works carried in local and distant television signals should require the
consent of the copyright owner: it adopted the compulsory licence and exception
regime by way of ss. 31 and 71 -76 of the Copyright Act (Canada-United
States Free Trade Agreement Implementation Act, s. 62 ). Studies on the
same question had preceded this enactment; there, too, a major concern was that
copyright owners “should not be permitted to stop retransmission because this
activity is too important to Canada’s communications system” (Standing
Committee on Communications and Culture. A Charter of Rights for Creators:
Report of the Sub-Committee on the Revision of Copyright (1985), at p. 80
(A.R., vol. III, at p. 118); Government Response to A Charter of Rights for
Creators (February 1986) (A.R., vol. III, at p. 127)).
[76]
The value for signal
regime would rewrite the balance between the owners’ and users’ interests as
set out by Parliament in the Copyright Act . Because the CRTC’s value for signal regime is inconsistent with the purpose of the Copyright
Act , it falls outside of the scope of the CRTC’s licensing and regulatory
jurisdiction under the Broadcasting Act .
[77]
I said earlier that I would come back to s.
31(2) (b) of the Copyright Act . The majority of the FCA concluded
that there is no incoherence between the value for signal regime and the Copyright
Act because of s. 31(2) (b) of the Copyright Act . This
section provides that in order for the exception to copyright to apply, the
retransmission must be “lawful under the Broadcasting Act ”. The
majority appears to have thought this was sufficient to ground the CRTC’s
jurisdiction to implement the value for signal regulatory regime.
[78]
In my respectful opinion, this provision cannot
serve to authorize the CRTC acting under the Broadcasting Act to
effectively amend the very heart of the balance of the retransmission regime
set out in s. 31(2) . Section 31(2) (b) is not a so-called Henry VIII
clause that confers jurisdiction on the CRTC to promulgate, through regulation
or licensing conditions, subordinate legislative provisions that are to prevail
over primary legislation (see Sullivan, at pp. 342-43). Absent specific
indication, Parliament cannot have intended by s. 31(2) (b) to empower a
subordinate regulatory body to disturb the balance struck following years of
studies. The legislative history does not lend support to this argument;
indeed, the history confirms Parliament’s deliberate policy choice in enacting
the compulsory licence and exception, or user’s rights, regime under s. 31(2) .
A general reference to “lawful under the Broadcasting Act ” cannot
authorize the CRTC, acting under open-ended jurisdiction-conferring provisions,
to displace the specific direction of Parliament in the Copyright Act .
[79]
In any case, the conflict found between the
value for signal regime and s. 21 is sufficient. It could not be overcome even
on a different reading of s. 31(2) (b) of the Copyright Act .
[80]
There is one final point to be made. Section 89
of the Copyright Act provides:
89. No
person is entitled to copyright otherwise than under and in accordance with
this Act or any other Act of Parliament, but nothing in this section shall be
construed as abrogating any right or jurisdiction in respect of a breach of
trust or confidence.
The deliberate use of the
words “this Act or any other Act of Parliament” rather than “this Act or any
other enactment” means that the right to copyright must be found in an Act of
Parliament and not in subordinate legislation promulgated by a regulatory body.
“Act” and “enactment” are defined in s. 2 of the Interpretation Act,
R.S.C. 1985, c. I-21 , where
“Act” means an Act of Parliament;
and
“enactment” means an Act or regulation or any
portion of an Act or regulation;
The definitions confirm
that Parliament did not intend that a subordinate regulatory body could create
copyright by means of regulation or licensing conditions.
[81]
Contrary to s. 89 , the value for signal regime
would create a new type of copyright by regulation or licensing condition.
Sections 2 and 21 of the Copyright Act define copyright in a
communication signal to include the sole right to authorize another broadcaster
to retransmit it to the public simultaneously with its broadcast. Authorizing
simultaneous retransmission is then an aspect of copyright, although the right
under the Copyright Act is limited to authorizing only specific defined
entities, other broadcasters. In light of the legislative history discussed
above, this limitation on copyright appears to be the result of a specific
Parliamentary choice not to change the balance struck in the Copyright Act
between broadcasters and BDUs. The value for signal regime would create a new
right to authorize retransmission (and correspondingly prevent retransmission
if agreement as to compensation is not achieved), in effect, amending the
copyright conferred by s. 21 . Thus the value for signal regime would create a
new type of copyright and would do so without the required Act of Parliament,
contrary to s. 89 .
[82]
My colleagues assert that there are functional
differences between copyright and the proposed regulatory scheme. With
respect, the differences that they point to do not alter the fundamental
functional equivalence between the proposed regime and a copyright. Section 21
of the Copyright Act empowers broadcasters to prohibit the
retransmission of their signals if certain conditions are met; the value for
signal regime does exactly the same thing. My colleagues are correct that the
CRTC cannot, through the value for signal regime, amend s. 21 of the Copyright
Act . However that is precisely what the proposed regime does. Parliament
could have imposed conditions that are the same, or similar to the value for
signal regime in s. 21 in the same way it imposed limits in s. 31 on the copyright
it granted in respect of retransmission of works, had it intended broadcasters
to have such a right. Describing this new right granted to broadcasters under
the value for signal regime as a series of regulatory changes does not alter
the true character of the right being created. Not calling it copyright does
not remove it from the scope of s. 89 . If that type of repacking was all that
was required, s. 89 would not serve its intended purpose of restricting the
entitlement to copyright to grants under and in accordance with Acts of
Parliament.
IV. Conclusion
[83]
The reference question should be answered in the
negative. The appeal should be allowed with costs throughout.
The reasons of
Deschamps, Abella, Cromwell and Karakatsanis were delivered by
[84]
Abella and
Cromwell JJ. (dissenting) —We have had the benefit of
reading the reasons of Rothstein J. but, with respect, do not agree.
[85]
Private local stations are licensed by the CRTC
to acquire, create and produce television programming. They serve small
geographic areas defined by the reach of their signals. According to the CRTC,
local stations are key contributors to attaining the objectives for the
Canadian broadcasting system.
[86]
Local stations have recently experienced a
financial crisis. The stations rely on advertising revenue to fund the cost of
creating, acquiring and broadcasting high quality Canadian programming.
Changes in the broadcasting business environment, however, have caused
advertising revenues to rapidly decline. These changes include the development
of direct-to-home satellite TV services and speciality television channels, and
the widespread adoption of alternative media platforms.
[87]
Currently, the local stations’ over-the-air
signals are picked up and retransmitted to a wider audience by cable service
providers (known as broadcasting distribution undertakings, or “BDUs”). The
BDUs retransmit these signals to their own subscribers for a fee. Under the
current broadcasting regime, BDUs are not required to negotiate compensation
with the local stations for retransmitting their signals to a local market.
Instead, the CRTC requires the BDUs to provide local stations with various
benefits, including mandatory carriage to the station’s local market,
preferential channel placement, and substitution of the local stations’
advertisements in place of those appearing on American stations transmitting
the same program. The current regime also requires the BDUs to make financial
contributions to the local stations; specifically, 1.5 percent of the BDUs’
gross revenues must go to a local programming improvement fund.
[88]
In 2010, the CRTC issued the Broadcasting
Regulatory Policy CRTC 2010-167 (“2010 Policy”), concluding that local
stations’ potential revenue streams under the existing regime needed to be
expanded in order to ensure the viability of local programming. The new regime
would supply local stations with funds beyond advertising revenues, by giving
them the option to negotiate with the BDUs for compensation for all
retransmissions of their signals. Where no agreement is reached, the local
station would be entitled to prevent retransmission of its signal by the BDU.
The BDUs already negotiate compensation with local stations for retransmitting
their signals outside the station’s local market, known as a “distant
signal”.
[89]
The proposed regime is consistent with the
market-based negotiations that increasingly prevail on other platforms,
including discretionary pay and specialty services, video-on-demand and online
and mobile streaming platforms. According to the CRTC, it is also consistent
with its own approach of using market-based solutions when appropriate.
Significantly, the CRTC has determined that the new regime is necessary to
preserve local stations and ensure the fulfillment of the broadcasting policy
objectives set out in s. 3(1) of the Broadcasting Act, S.C. 1991, c. 11 .
[90]
While the CRTC concluded that the new regime was
necessary to ensure the viability of local stations, it acknowledged concern in
the 2010 Policy itself that the Copyright Act, R.S.C. 1985, c. C-42 , might
create a “potential impediment” to its jurisdiction to implement the regime
(para. 165). Under ss. 18.3 and 28(2) of the Federal Courts Act, R.S.C.
1985, c. F-7 , it therefore brought the following reference question to the
Federal Court of Appeal:
Is the Commission empowered, pursuant to its
mandate under the Broadcasting Act , to establish a regime to enable
private local television stations to choose to negotiate with broadcasting
distribution undertakings a fair value in exchange for the distribution of the
programming services broadcast by those local television stations?
[91]
We agree with the majority of the Federal Court
of Appeal that this question should be answered in the affirmative, and would
therefore dismiss the appeal (2011 FCA 64, 413 N.R. 312). In our view, the new
regime is merely an extension of the current regime, which places several
conditions — including financial ones — on BDUs for the licence to retransmit
local stations’ signals. We also conclude that nothing in the Copyright Act
creates a barrier to the CRTC’s authority to implement the new regime.
Analysis
[92]
The narrow reference question requires us to
determine whether the CRTC has jurisdiction under the Broadcasting Act to
implement the new regime. Read on its own, the Broadcasting Act
appears to grant this jurisdiction, which raises the question of whether
something in the Copyright Act demonstrates Parliament’s intent to
derogate from or attenuate this jurisdiction in order to satisfy another public
interest. In other words, we must determine whether there would be an
unavoidable conflict if the Broadcasting Act were read to confer on the
CRTC the jurisdiction to implement the regime. If so, this would suggest a
less expansive reading of the CRTC’s jurisdiction. An unavoidable conflict
only occurs when two statutes directly contradict one another, in a way that
applying one excludes the application of the other, or where their concurrent
application could lead to unreasonable or absurd results: Lévis (City) v.
Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591,
at para. 47. Generally, the Court will favour an interpretation that avoids
such a conflict: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2
S.C.R. 867, at para. 30. However, in our view, there is no conflict between
the Broadcasting Act and the Copyright Act that would prevent
reading the former as conferring on the CRTC the jurisdiction to implement the
new regime.
[93]
Analytically, the first question is whether the
CRTC has jurisdiction to implement the proposed regime under the Broadcasting
Act . The CRTC is granted a broad, flexible mandate to implement measures
that further the broadcasting policy of Canada. Section 3(1) of the Broadcasting
Act sets out the basic operative broadcasting policies. They primarily
address the need to support local content in television and other programs in
order to enrich Canada’s cultural, political, social and economic environments.
The provisions that confer powers on the CRTC — what Rothstein J. refers to as
“jurisdiction-conferring” provisions — explicitly incorporate these policy
objectives. Under s. 5(1) of the Act, the CRTC “shall regulate and supervise
all aspects of the Canadian broadcasting system with a view to implementing the
broadcasting policy set out in subsection 3(1) ”. The CRTC possesses the
jurisdiction to issue licences to participants in the Canadian broadcasting
system. It can impose any conditions on these licences that it “deems
appropriate for the implementation of the broadcasting policy set out in
subsection 3(1) ”: s. 9(1) (b)(i); CKOY Ltd. v. The Queen, [1979] 1
S.C.R. 2; see also Canadian Radio-Television and Telecommunications
Commission v. CTV Television Network Ltd., [1982] 1 S.C.R. 530, at p. 545.
The CRTC may also make regulations under s. 10(1)(k) of the Act
“respecting such other matters as it deems necessary for the furtherance of its
objects”. Section 3(2) of the Act states that the Canadian broadcasting system
is a single system, and that the objectives in s. 3(1) can best be achieved by
regulation and supervision through “a single independent public authority”: the
CRTC.
[94]
As “broadcasting undertaking[s]” under s. 2(1)
of the Act, BDUs are part of the single broadcasting system that the CRTC must
regulate and supervise pursuant to s. 5(1). BDUs do not have a freestanding
right to retransmit local stations’ programs: BDUs derive that right only
from licences granted pursuant to s. 9 of the Broadcasting Act , subject
to any conditions imposed under s. 9(1) (b)(i). The current conditions
of the BDUs’ licences to retransmit local stations’ signals require them to
provide the benefits noted earlier, which include payments to a fund for the
local stations. The proposed regime would involve an extension or alteration of
the conditions on BDUs’ licences, requiring them to negotiate compensation
directly with the local stations.
[95]
The breadth of the CRTC’s discretion to
determine what measures are necessary to further Canada’s broadcasting policy
was acknowledged by this Court in CKOY. The issue was whether the CRTC
had jurisdiction under the Broadcasting Act to enact a regulation which
prohibited stations or networks from broadcasting telephone interviews without
the participant’s consent. Spence J., writing for the majority, observed that
“Parliament intended to give to the Commission a wide latitude with respect to
the making of regulations to implement the policies and objects for which the
Commission was created” (at p. 12, quoting with approval the Court of Appeal:
(1976), 13 O.R. (2d) 156, at p. 162). He set out the test for
determining the validity of the CRTC’s regulations as follows:
. . . the validity of any regulation enacted in
reliance upon [the predecessor section to s. 10 ] must be tested by determining
whether the regulation deals with a class of subject referred to in s. 3
of the statute and . . . in doing so the Court looks at the regulation
objectively. [Emphasis added; p. 11.]
[96]
Spence J. concluded that because the particular
regulation had a basis in several of the policies enumerated in s. 3 of the Act,
including the need to provide a reasonably balanced opportunity for the
expression of differing views, and to provide programming of a high standard,
the regulation was authorized by the Broadcasting Act : pp. 12-14.
[97]
In accordance with this approach, the proposed
regime is within the CRTC’s regulatory jurisdiction under the Broadcasting
Act , since it is demonstrably linked to several of the policies in s. 3 .
In its 2010 Policy, the CRTC determined that the new regime was necessary
to ensure the fulfillment of the broadcasting policy objectives set out in s.
3(1) of the Broadcasting Act . In particular, the CRTC concluded that
the regime was necessary to fulfill the policies stated in ss. 3(1) (e)
and 3(1) (f):
(e)
each element of the Canadian broadcasting system shall contribute in an
appropriate manner to the creation and presentation of Canadian programming;
(f) each broadcasting undertaking
shall make maximum use, and in no case less than predominant use, of Canadian
creative and other resources in the creation and presentation of programming .
. . .
[98]
Because the proposed regime was intended to save
the financially troubled local stations, it is also linked to the policy set
out in s. 3(1) (s):
(s)
private networks and programming undertakings should, to an extent
consistent with the financial and other resources available to them,
(i)
contribute significantly to the creation and presentation of Canadian
programming, and
(ii) be responsive to the evolving
demands of the public. . . .
[99]
Modern statutory interpretation looks to the
objectives of the statute to construe the meaning of the words and the
mandate. This had led to a long and accepted line of jurisprudence which has
consistently interpreted the CRTC’s jurisdiction to regulate and supervise
Canadian broadcasting broadly. Reference has been made to the “very broad
words” of the jurisdiction-conferring provisions in the Broadcasting Act ,
as well as the “embracive objects committed to the Commission under [the
predecessor to s. 5(1) ], objects which extend to the supervision of ‘all
aspects of the Canadian broadcasting system with a view to implementing the
broadcasting policy enunciated in section 3 of the Act’”: CKOY at pp. 13-14,
quoting Laskin C.J. in Capital Cities Communications Inc. v. Canadian Radio-Television
Commission, [1978] 2 S.C.R. 141.
[100]
The Federal Court of Appeal has similarly and
repeatedly indicated that the CRTC “has a very broad mandate under the Broadcasting
Act ”, and “has been endowed with powers couched in the broadest of
terms for ‘the supervision and regulation of the Canadian broadcasting system’.
. . with a view to implementing the broadcasting policy enunciated in section 3
of the Act”: Telecommunications Workers Union v. Canadian Radio-television
and Telecommunications Commission, 2003 FCA 381, [2004] 2 F.C.R. 3 (“T.W.U.”),
at para. 40; Assn. for Public Broadcasting in British Columbia v. Canadian
Radio-television and Telecommunications Commission, [1981] 1 F.C. 524
(C.A.), at p. 530, leave to appeal refused, [1981] 1 S.C.R. v. Because of the
CRTC’s specialization and expertise, “Parliament has granted extensive powers
for the supervision and regulation of the Canadian broadcasting system to allow
[the CRTC] to implement the broadcasting policy set out in s. 3 of the Broadcasting
Act . . . . It is settled that the CRTC has broad discretion in exercising
its powers to issue or revoke licences”: Société Radio-Canada v. Métromédia
CMR Montréal Inc. (1999), 254 N.R. 266 (F.C.A.), at para. 2.
[101]
The CRTC’s broad jurisdiction derives from the
fact that each of ss. 5(1), 9(1)(b)(i) and 10(1)(k) confer
generally-worded powers, along with a discretion to use them as the CRTC deems
appropriate to implement the objects set out in s. 3(1) . Courts have
consistently determined the validity of the CRTC’s exercises of power under any
of these provisions by applying the CKOY test: was the power used in
connection with a policy objective in s. 3(1) ? In CKOY, Spence J. dealt
with the use of the regulation-making power, and noted that the section’s “very
broad words . . . authorize one enactment of regulations to further any policy
outlined in the whole of s. 3 ” (p. 13). In Canadian Broadcasting League v.
Canadian Radio-television and Telecommunications Commission, [1983] 1 F.C.
182 (C.A.), aff’d [1985] 1 S.C.R. 174, Le Dain J.A., when he was in the Federal
Court of Appeal, held that the same principle applies to the power to attach
conditions to licences:
What was said concerning the validity
of a regulation under [the predecessor to s. 10(1)] applies equally in my opinion
to the validity of a condition attached to a licence under [the predecessor to
s. 9(1)]. That section begins, like [the predecessor to s. 10(1)], with the
words “In furtherance of the objects of the Commission”, and empowers the
Executive Committee to subject a broadcasting licence to such conditions
related to the circumstances of the licensee as it “deems appropriate for the
implementation of the broadcasting policy enunciated in section 3 ”, an
authority that is, if anything, even broader than that which is conferred by
[the predecessor to s. 10(1)(k)]. [Emphasis added; p. 192.]
In T.W.U., Sexton
J.A. reiterated that the CKOY test applies to the exercise of both the
regulation-making and licence-condition powers. He held that
the CRTC has broad power to impose conditions of
license. The only limitation on the conditions that the CRTC may impose is
that it must deem the conditions “appropriate for the implementation of the
broadcasting policy set out in subsection 3(1) .” [Emphasis added; para.
48.]
[102]
Moreover, courts have thus far recognized that
the mandate granted to the CRTC under the Broadcasting Act is both
economic and cultural (T.W.U., at para. 28), not “primarily
cultural”, as asserted by Justice Rothstein (at para. 32), and have upheld
regulations and licensing conditions imposed by the CRTC in furtherance of
economic objectives listed in the Broadcasting Act , but absent any
specific grant of power.
[103]
In Canadian Broadcasting League, as in
the present case, at issue was the CRTC’s power to direct the economic
relationship between participants in the broadcasting system and, specifically,
whether the CRTC could fix the installation fees and maximum monthly fees that
a BDU could charge to its subscribers. Le Dain J.A. held that the CRTC could do
so under either its licensing power or its regulation-making power,
rejecting the argument that the CRTC lacked the power to regulate rates and
fees because it was not expressly granted in the Broadcasting Act .
[104]
The CRTC’s jurisdiction to impose financial conditions
on broadcast system participants was also upheld by the Federal Court of Appeal
in Canadian Motion Picture Distributors Assn. v. Partners of Viewer’s Choice
Canada (1996), 137 D.L.R. (4th) 561. The court held that the CRTC did not
exceed its statutory mandate by requiring a pay-per-view licensee to share the
revenues it earned from the distribution of feature films in equal parts with
the copyright holder and the licensed programming undertaking that assembled
the pay-per-view content. According to the court:
The reference to the film distribution
industry as “an important element of the broadcasting system” provides a
clear link to the Commission's objects in subsection 5(1) of the Act
and the broadcasting policy in subsection 3(1) . [Emphasis added; p. 565.]
A similar “clear link”
exists in this case.
[105]
And in T.W.U., Sexton J.A. found that the
CRTC could enact a regulation that essentially deregulated basic cable service
rates in areas where there was sufficient competition to let market forces take
over. He found that the CRTC had an obligation, based on the policy objectives
in s. 3(1) , to ensure that programming was provided at affordable rates, and
could rely on market forces to fulfill that objective. Similarly, in this case,
the CRTC seeks to implement a market-based negotiation scheme consistent with
the policy objectives in s. 3(1) .
[106]
In each of these cases, the CRTC regulated an
economic aspect of the Canadian broadcasting system by requiring revenue
splitting, by setting rates for services, or by deregulating them. None of
these forms of regulation was tied to a specific and express grant of power in
the Broadcasting Act . In each case, the CRTC was found to have
jurisdiction under either or both of its general powers to make regulations and
impose conditions on licences.
[107]
The conclusion that the proposed regime is
within CRTC jurisdiction is consistent with this broad mandate, most recently
upheld by this Court in Bell Canada v. Bell Aliant Regional Communications,
2009 SCC 40, [2009] 2 S.C.R. 764. The issue was whether the CRTC could
exercise the rate-setting authority it had under the Telecommunications Act,
S.C. 1993, c. 38 , to require local carriers to spend their deferral accounts by
expanding broadband services and giving credits to consumers. This Court
confirmed that the decision was entirely within the CRTC’s mandate:
.
. . the issues raised in these appeals go to the very heart of the CRTC’s
specialized expertise. In the appeals before us, the core of the quarrel in
effect is with the methodology for setting rates and the allocation of certain
proceeds derived from those rates, a polycentric exercise with which
the CRTC is statutorily charged and which it is uniquely qualified to undertake.
. . .
. .
.
. . . it follows from the CRTC’s broad
discretion to determine just and reasonable rates under s. 27 , its power to
order a carrier to adopt any accounting method under s. 37, and its statutory
mandate under s. 47 to implement the wide-ranging Canadian telecommunications
policy objectives set out in s. 7, that the Telecommunications Act
provides the CRTC with considerable scope in establishing and approving the
use to be made of deferral accounts. [Emphasis added; paras. 38 and 55.]
[108]
This broad mandate to set rates in
furtherance of Canada’s telecommunications policy is analogous to the CRTC’s
broad mandate to set licensing conditions in furtherance of Canada’s
broadcasting policy as it has purported to do in the 2010 Policy. Both
mandates involve “a polycentric exercise”, necessitating a “considerable scope”
of jurisdiction.
[109]
Having determined that the Broadcasting Act would
grant authority to the CRTC to implement the new regime, the question then is
whether the regime creates an “unavoidable conflict” with the Copyright
Act in a way that would invalidate this preliminary interpretive
conclusion.
[110]
The BDUs point to two unavoidable conflicts
between the proposed regime and the provisions of the Copyright Act .
First, they argue that the regime conflicts with s. 21(1) (c). This
provision states that a “broadcaster” — which includes a local station — has
the sole right “to authorize another broadcaster to retransmit [its signals] to
the public”. The definition of “broadcaster” in s. 2 of the Copyright Act ,
however, excludes BDUs, as entities whose “primary activity in relation
to communication signals is their retransmission”. Since BDUs are excluded
from the definition, they argue that they need not be “authorize[d]” under s.
21(1) (c) at all. This provision therefore conflicts with the proposed
regime, which not only gives local stations the right to authorize BDUs to
retransmit their signals, but also gives them the right to block BDUs from
retransmitting those signals altogether.
[111]
In our view, there is no unavoidable conflict
with s. 21(1) (c). There is nothing in either the definition of
“broadcaster” or in s. 21(1) (c) of the Copyright Act that
purports to immunize BDUs from licensing requirements put in place by the CRTC
in accordance with its broadcasting mandate. BDUs derive their right to
retransmit signals only from licences granted pursuant to s. 9 of the Broadcasting
Act , and must meet the conditions imposed by the CRTC on their
retransmission licences, including those set out in the proposed regime.
[112]
Section 21(1) (c) deals only with the
extent to which local stations, as “broadcasters”, have a copyright in their
communication signals. It does not affect the licensing requirements under the
Broadcasting Act . While BDUs do not need permission to retransmit
signals under the Copyright Act , that does not mean they are free to
retransmit signals without permission under the Broadcasting Act .
[113]
The second conflict alleged by the BDUs is with
s. 31(2) (d) of the Copyright Act . The full provision states:
31. . . .
(2) It
is not an infringement of copyright for a retransmitter to communicate to the
public by telecommunication any literary, dramatic, musical or artistic work if
(a) the
communication is a retransmission of a local or distant signal;
(b) the
retransmission is lawful under the Broadcasting Act ;
(c) the
signal is retransmitted simultaneously and without alteration, except as
otherwise required or permitted by or under the laws of Canada;
(d) in
the case of the retransmission of a distant signal, the retransmitter has
paid any royalties, and complied with any terms and conditions, fixed under
this Act; and
(e) the retransmitter complies
with the applicable conditions, if any, referred to in paragraph (3)(b).
[114]
This section means that it is not an
infringement of copyright if a retransmitter, like a BDU, is retransmitting
local or distant signals, is retransmitting lawfully under the Broadcasting
Act , and, if it is retransmitting a distant signal, has paid copyright
royalties. The BDUs’ main argument under this provision is that even though s.
31(2) (a) refers to both “local” and “distant” signals, s. 31(2) (d)
limits royalty payments to distant signals only. This reference to distant
signals in s. 31(2) (d), they say, conflicts with the proposed regime,
which effectively creates royalties for local signals, which are generally the
type of signals emitted by local stations.
[115]
This argument turns s. 31(2) (d) on its
head. Even within the context of the Copyright Act alone, s. 31(2) (d)
simply requires that BDUs pay a copyright royalty to copyright owners for
retransmitting “distant signal[s]”. Nothing in the plain meaning of this
provision actually prevents a copyright royalty for retransmitting
“local signal[s]”. If Parliament had intended to prevent such royalties for
local signals under any circumstances, it would have expressly said so.
[116]
But, despite the plain wording of s. 31(2) (d),
the BDUs argue that it was Parliament’s implicit intention to prevent royalties
for the retransmission of local signals. They point to a number of reports,
committee transcripts and submissions relating to the legislative history of
the Copyright Act , which they claim demonstrate Parliament’s consistent
refusal to grant such royalties. With respect, these materials are of limited
assistance. The fact that Parliament may have decided not to impose royalties
on the retransmission of local signals for the benefit of copyright owners has
nothing to do with whether the BDUs can be required to compensate local
stations for a different purpose, namely, to fulfill the conditions of their
retransmission licence under the Broadcasting Act . We therefore do not
accept that s. 31(2) (d) of the Copyright Act creates an
unavoidable conflict with the proposed regime.
[117]
The lack of a conflict between the proposed
regime and s. 31(2) (d) is highlighted by s. 31(2) (b), which
states that BDUs are only entitled to avoid copyright infringement for
retransmitting signals where “the retransmission is lawful under the
Broadcasting Act ”. We agree with the majority of the Federal Court of
Appeal that s. 31(2) (b) demonstrates Parliament’s clear intention that
the conditions placed on BDUs under the Broadcasting Act in furtherance
of Canada’s broadcasting policy are ranked ahead of the BDUs’ statutory right
to retransmit signals under s. 31(2) of the Copyright Act .
[118]
The BDUs argue, however, that the language in s.
31(2) (b) is too broad to override the specific language in s. 31(2) (d)
limiting royalties to those for “distant signals”. They cite two cases to
support their argument: Barrie Public Utilities v. Canadian Cable Television
Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, and ATCO Gas and Pipelines Ltd.
v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140.
Neither of these two cases deals with a conflict between statutes, and neither
stands for the proposition that a single word in a provision — such as
“distant” signal — can defeat an otherwise express and clear legislative
intention. Barrie Public Utilities dealt only with whether the CRTC had
jurisdiction to grant a right of access to a utility’s power poles under s.
43(5) of the Telecommunications Act , and ATCO dealt with whether
the Alberta Energy and Utilities Board had jurisdiction to order that proceeds
from an asset sale be allocated to a utility’s customers under s. 15(3) of the Alberta
Energy and Utilities Board Act, R.S.A. 2000, c. A-17.
[119]
At the end of the day, the BDUs’ argument is
that the proposed regime somehow creates a new copyright. They argue that the
exclusive right to authorize or block retransmission by BDUs, and the
requirement that BDUs compensate local stations for retransmitting their
signals, creates a copyright for local stations in the retransmission of their
signals. According to the BDUs, this violates s. 89 of the Copyright Act ,
which states that “[n]o person is entitled to copyright otherwise than under
and in accordance with this Act or any other Act of Parliament”. It also
violates this Court’s statement in CCH Canadian Ltd. v. Law Society of Upper
Canada, 2004 SCC 13, [2004] 1 S.C.R. 339, that “copyright is a creature of
statute and the rights and remedies provided by the Copyright Act are
exhaustive” (para. 9).
[120]
We do not see the proposed regime as giving
local stations a copyright in the retransmission of their television signals.
Section 2 of the Copyright Act defines “copyright” in the case of a
communication signal as “the rights described in . . . section 21 ”. The
exhaustive definition of copyright in s. 21 leaves out the right to authorize
retransmission by BDUs. We do not see the proposed regime as amending
this definition, something it cannot in any event do, given s. 89 , but as
instituting a different type of regulation with respect to an aspect of
broadcasting that is simply not included in the exhaustive statutory scheme of
copyright.
[121]
There are significant functional differences, as
well. The copyright owner does not need to forego any other entitlements to
claim a copyright. Instead, copyright automatically attaches to a
communication signal, lasting for 50 years after the end of the calendar year
in which it was broadcast: Copyright Act, s. 23(1) (c). The
proposed regime, in contrast, gives local stations a limited power, and only vis-à-vis
BDUs. The local stations have to forego their existing entitlements under the
current regime in order to participate in the new regime. Moreover, the local
stations’ power to prevent BDUs from retransmitting their signals is
conditional on a complete breakdown of negotiations and a resulting lack of
agreement with the BDUs. There are additional conditions under the proposed
regime that are not placed on copyright owners: for example, local stations
must spend approximately 30 percent of any negotiated compensation they receive
on Canadian programming, with 5 percent dedicated to “programs of national
interest”. Finally, unlike copyright, the new regime is renewable every three
years and subject to ongoing regulatory oversight by the CRTC: 2010 Policy, paras.
51, 74-75 and 155-164. The proposed regime, therefore, is far from
“functionally equivalent”, as stated by the dissent in the Federal Court of
Appeal (at para. 84), to giving local stations a full copyright in the
retransmission of their signals.
[122]
The regime aims to further the objectives found
in s. 3(1) (e), (f) and (s), which call for each element of
the Canadian broadcasting system to contribute to the creation and presentation
of Canadian programming; call for broadcasting undertakings to make maximum use
of Canadian creative and other resources in the creation and presentation of
programming; and call for private networks, to the extent consistent with the
resources available to them, to contribute to the creation and presentation of
Canadian programming. The
CRTC has every right to turn to market-based means of fulfilling these specific
objectives of Canadian broadcasting policy. These objectives differ from the more general copyright objectives of “promoting the public interest in the
encouragement and dissemination of works of the arts and intellect and
obtaining a just reward for the creator”: Théberge
v. Galerie d’Art du Petit Champlain inc., 2002 SCC
34, [2002] 2 S.C.R. 336, at
para. 30. Indeed, as discussed above, BDUs are already
required to make financial contributions under the current regime, and they are
already required to negotiate compensation with local stations for the
retransmission of distant signals.
[123]
In our view, therefore, there is no unavoidable
conflict with the Copyright Act that would eliminate the CRTC’s
jurisdiction to implement the proposed regime.
[124]
The BDUs also make policy arguments, submitting
that giving local stations the ability to block their signals, as well as the
extra compensation to local stations, will increase costs and signal
interruptions, ultimately hurting end consumers. We do not find this argument
persuasive. First, retransmitting local signals is currently the only
instance where a BDU can distribute signals without the broadcaster’s prior
consent. The CRTC has implemented mandatory negotiation-based schemes for
other services, including specialty channels, pay-per-view and video-on-demand.
[125]
More importantly, however, the new regime’s
potential success in achieving the broadcasting policy objectives is completely
irrelevant to determining whether the CRTC has jurisdiction to implement it.
Any question as to the wisdom of the regime is a question solely for the CRTC
as the single broadcasting authority in s. 3(2) of the Broadcasting Act .
As an expert body, the CRTC, not the courts, is in the best position to decide
what measures are necessary to save local stations from going bankrupt. In any
event, if for any reason the proposed regime proves unworkable in the future,
the CRTC has both the authority and the necessary expertise to make the
appropriate changes.
[126]
We would therefore dismiss the appeal with
costs.
APPENDIX
Broadcasting Act, S.C. 1991, c. 11
2. (1) In
this Act,
. . .
“broadcasting
undertaking” includes a distribution undertaking, a programming undertaking and
a network;
. . .
“distribution undertaking” means an undertaking for the
reception of broadcasting and the retransmission thereof by radio waves or
other means of telecommunication to more than one permanent or temporary residence
or dwelling unit or to another such undertaking;
. . .
“program” means sounds or visual images, or a combination
of sounds and visual images, that are intended to inform, enlighten or
entertain, but does not include visual images, whether or not combined with
sounds, that consist predominantly of alphanumeric text;
“programming undertaking” means an undertaking for the
transmission of programs, either directly by radio waves or other means of
telecommunication or indirectly through a distribution undertaking, for
reception by the public by means of broadcasting receiving apparatus;
. . .
3. (1) It
is hereby declared as the broadcasting policy for Canada that
. . .
(e) each
element of the Canadian broadcasting system shall contribute in an appropriate
manner to the creation and presentation of Canadian programming;
(f) each
broadcasting undertaking shall make maximum use, and in no case less than
predominant use, of Canadian creative and other resources in the creation and
presentation of programming . . .;
(g) the
programming originated by broadcasting undertakings should be of high standard;
. . .
(s) private
networks and programming undertakings should, to an extent consistent with the
financial and other resources available to them,
(i) contribute
significantly to the creation and presentation of Canadian programming, and
(ii) be
responsive to the evolving demands of the public; and
(t) distribution
undertakings
(i) should
give priority to the carriage of Canadian programming services and, in
particular, to the carriage of local Canadian stations,
. . .
(iii) should,
where programming services are supplied to them by broadcasting undertakings
pursuant to contractual arrangements, provide reasonable terms for the
carriage, packaging and retailing of those programming services
. . .
(2) It
is further declared that the Canadian broadcasting system constitutes a single
system and that the objectives of the broadcasting policy set out in subsection
(1) can best be achieved by providing for the regulation and supervision of the
Canadian broadcasting system by a single independent public authority.
5. (1) Subject to this Act and the Radiocommunication Act
and to any directions to the Commission issued by the Governor in Council under
this Act, the Commission shall regulate and supervise all aspects of the
Canadian broadcasting system with a view to implementing the broadcasting
policy set out in subsection 3(1) and, in so doing, shall have regard to the
regulatory policy set out in subsection (2).
(2) The
Canadian broadcasting system should be regulated and supervised in a flexible
manner that
(a) is
readily adaptable to the different characteristics of English and French
language broadcasting and to the different conditions under which broadcasting
undertakings that provide English or French language programming operate;
(b) takes
into account regional needs and concerns;
(c) is
readily adaptable to scientific and technological change;
(d) facilitates
the provision of broadcasting to Canadians;
(e) facilitates
the provision of Canadian programs to Canadians;
(f) does
not inhibit the development of information technologies and their application
or the delivery of resultant services to Canadians; and
(g) is
sensitive to the administrative burden that, as a consequence of such
regulation and supervision, may be imposed on persons carrying on broadcasting
undertakings.
(3) The
Commission shall give primary consideration to the objectives of the
broadcasting policy set out in subsection 3(1) if, in any particular matter
before the Commission, a conflict arises between those objectives and the
objectives of the regulatory policy set out in subsection (2).
9. (1) Subject to this Part, the Commission may, in
furtherance of its objects,
(a) establish
classes of licences;
(b) issue
licences for such terms not exceeding seven years and subject to such
conditions related to the circumstances of the licensee
(i) as
the Commission deems appropriate for the implementation of the broadcasting
policy set out in subsection 3(1) , and
(ii) in
the case of licences issued to the Corporation, as the Commission deems
consistent with the provision, through the Corporation, of the programming
contemplated by paragraphs 3(1) (l) and (m);
(c) amend
any condition of a licence on application of the licensee or, where five years
have expired since the issuance or renewal of the licence, on the Commission’s
own motion;
(d) issue
renewals of licences for such terms not exceeding seven years and subject to
such conditions as comply with paragraph (b);
(e) suspend
or revoke any licence;
(f) require
any licensee to obtain the approval of the Commission before entering into any
contract with a telecommunications common carrier for the distribution of
programming directly to the public using the facilities of that common carrier;
(g) require
any licensee who is authorized to carry on a distribution undertaking to give
priority to the carriage of broadcasting; and
(h) require
any licensee who is authorized to carry on a distribution undertaking to carry,
on such terms and conditions as the Commission deems appropriate, programming
services specified by the Commission.
. . .
10. (1) The Commission may, in furtherance of its objects,
make regulations
(a) respecting
the proportion of time that shall be devoted to the broadcasting of Canadian
programs;
(b) prescribing
what constitutes a Canadian program for the purposes of this Act;
(c) respecting
standards of programs and the allocation of broadcasting time for the purpose
of giving effect to the broadcasting policy set out in subsection 3(1) ;
(d) respecting
the character of advertising and the amount of broadcasting time that may be
devoted to advertising;
(e) respecting
the proportion of time that may be devoted to the broadcasting of programs,
including advertisements or announcements, of a partisan political character
and the assignment of that time on an equitable basis to political parties and
candidates;
(f) prescribing
the conditions for the operation of programming undertakings as part of a
network and for the broadcasting of network programs, and respecting the
broadcasting times to be reserved for network programs by any such
undertakings;
(g) respecting
the carriage of any foreign or other programming services by distribution
undertakings;
(h) for
resolving, by way of mediation or otherwise, any disputes arising between
programming undertakings and distribution undertakings concerning the carriage
of programming originated by the programming undertakings;
(i) requiring
licensees to submit to the Commission such information regarding their programs
and financial affairs or otherwise relating to the conduct and management of
their affairs as the regulations may specify;
(j) respecting
the audit or examination of the records and books of account of licensees by
the Commission or persons acting on behalf of the Commission; and
(k) respecting such other matters as
it deems necessary for the furtherance of its objects.
Copyright Act, R.S.C. 1985, c. C-42
2. In this Act,
. . .
“broadcaster” means a body that, in the course of
operating a broadcasting undertaking, broadcasts a communication signal in
accordance with the law of the country in which the broadcasting undertaking is
carried on, but excludes a body whose primary activity in relation to
communication signals is their retransmission;
. . .
“communication signal” means radio waves transmitted
through space without any artificial guide, for reception by the public;
. . .
“copyright” means the rights described in
(a) section
3 , in the case of a work,
(b) sections
15 and 26, in the case of a performer’s performance,
(c) section
18, in the case of a sound recording, or
(d) section
21 , in the case of a communication signal;
. . .
3. (1) For the purposes of this Act, “copyright”, in
relation to a work, means the sole right to produce or reproduce the work or
any substantial part thereof in any material form whatever, to perform the work
or any substantial part thereof in public or, if the work is unpublished, to
publish the work or any substantial part thereof, and includes the sole right
. . .
(f) in
the case of any literary, dramatic, musical or artistic work, to communicate
the work to the public by telecommunication,
. . .
and to authorize any such acts.
(1.1) A
work that is communicated in the manner described in paragraph (1)(f) is
fixed even if it is fixed simultaneously with its communication.
. . .
21. (1) Subject to subsection (2), a broadcaster has a
copyright in the communication signals that it broadcasts, consisting of the
sole right to do the following in relation to the communication signal or any
substantial part thereof:
(a) to
fix it,
(b) to
reproduce any fixation of it that was made without the broadcaster’s consent,
(c) to
authorize another broadcaster to retransmit it to the public simultaneously
with its broadcast, and
(d) in
the case of a television communication signal, to perform it in a place open to
the public on payment of an entrance fee,
and
to authorize any act described in paragraph (a), (b) or (d).
. . .
31. (1) In this section,
“new media retransmitter” means a person whose
retransmission is lawful under the Broadcasting Act only by reason
of the Exemption Order for New Media Broadcasting Undertakings issued
by the Canadian Radio-television and Telecommunications Commission as Appendix
A to Public Notice CRTC 1999-197, as amended from time to time;
“retransmitter” means a person who performs a function
comparable to that of a cable retransmission system, but does not include a new
media retransmitter;
“signal” means a signal that carries a literary, dramatic,
musical or artistic work and is transmitted for free reception by the public by
a terrestrial radio or terrestrial television station.
(2) It
is not an infringement of copyright for a retransmitter to communicate to the
public by telecommunication any literary, dramatic, musical or artistic work if
(a) the
communication is a retransmission of a local or distant signal;
(b) the
retransmission is lawful under the Broadcasting Act ;
(c) the
signal is retransmitted simultaneously and without alteration, except as
otherwise required or permitted by or under the laws of Canada;
(d) in
the case of the retransmission of a distant signal, the retransmitter has paid
any royalties, and complied with any terms and conditions, fixed under this
Act; and
(e) the
retransmitter complies with the applicable conditions, if any, referred to in
paragraph (3)(b).
(3) The
Governor in Council may make regulations
(a) defining
“local signal” and “distant signal” for the purposes of subsection (2); and
(b) prescribing conditions for the
purposes of paragraph (2)(e), and specifying whether any such condition
applies to all retransmitters or only to a class of retransmitter.
Appeal allowed with costs throughout, Deschamps, Abella, Cromwell and Karakatsanis JJ. dissenting.
Solicitors
for the appellant Cogeco Cable Inc.: McCarthy Tétrault, Toronto.
Solicitors
for the appellants Rogers Communications Inc. and TELUS Communications Company: Fasken
Martineau DuMoulin, Ottawa.
Solicitors
for the appellant Shaw Communications Inc.: Davies Ward Phillips
& Vineberg, Toronto.
Solicitors
for the respondents Bell Media Inc. (formerly CTV Globemedia Inc.), V
Interactions Inc. and Newfoundland Broadcasting Co. Ltd.: Goodmans,
Toronto.
Solicitors
for the respondent Canwest Television Limited Partnership: Paliare,
Roland, Rosenberg, Rothstein, Toronto.
Solicitors
for the intervener: Canadian Radio-television and Telecommunications
Commission, Gatineau.