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Media & Communications Law - Broadcasting - Broadcasting policy - Media ownership - Broadcast distribution undertakings - Licensing - Broadcast undertakings - Television - Transmission of broadcasts - Copyright - Transmission of copyright works

Thursday, December 08, 2016 @ 7:00 PM  

Application by VMedia for a declaration that its internet retransmitting service was not infringing Bell’s copyrights in CTV television broadcasts. Bell sought the opposite relief in a counter-application. VMedia was licensed by the CRTC to broadcast, under several licenses, in several provinces. It started to offer a new service in September 2016, retransmitting a package of over-the-air television channels to customers for $18 per month. Customers required a Canadian credit card and a set-top box to access the service, which was delivered and accessed over the internet. As such, VMedia was not entitled to a compulsory license for simultaneous retransmission, and had to obtain Bell’s consent to retransmit copyrighted CTV and CTV2 signals and programming on the new service. VMedia took the position its new service was lawful under its licenses as a Broadcast Distribution Undertaking (BDU), not only based on the CRTC’s Exemption Order for New Media Broadcasting Undertakings. It pointed out that it had the ability to prevent its signal from being accessed over the internet outside its service area. It likened its service to IPTV and expressed willingness to pay for a compulsory license.

HELD: Application by VMedia dismissed; application by Bell allowed. VMedia was permanently enjoined from continuing to provide its new service. It infringed Bell’s rights under the Copyright Act by proceeding without Bell’s consent to simultaneously communicate CTV and CTV2 over-the-air television copyrighted works through the service. VMedia’s new service did not qualify for a compulsory license as a retransmitter. It was broadcast lawfully only by reason of the Exemption Order. Nothing in VMedia’s BDU licenses purported to license it to retransmit on the internet, because the CRTC did not license that activity. The silence in its license about internet retransmission had nothing to do with a lawful entitlement to do an unlicensed activity. VMedia’s willingness to pay for a license did not render its service a regulated activity. Its service did not meet the CRTC’s factors to qualify as IPTV because the set-top boxes were movable, did connect to the internet, and were not tied to a specific ISP address that could only be operated on that address.