Top News

  • The Canadian Radio-television and Telecommunications Commission's (CRTC) Online Streaming Act hearing – On November 20, 2023, the CRTC began a hearing to establish a modernized regulatory framework regarding contributions to support Canadian and Indigenous content. One hundred twenty-two interveners appeared over the course of three weeks. The hearing focused primarily on the applicability of the new contribution framework, the percentage of annual revenues that applicable undertakings would be required to make as an initial contribution, and the funds which will be the recipients of the initial contributions.
  • The Online News Act (the "Act") came into force on December 19, 2023, 180 days after the Act received royal assent. The Governor-in-Council also released its final regulations under the Act in December. These regulations set out which online communications platforms are subject to the Act and the timeframe for these platforms to notify the CRTC that the Act applies to them. Among other things, they also provide direction on how these platforms can obtain an exemption from mandatory bargaining.

Regulatory Policies and Bulletins

  • Broadcasting Regulatory Policy CRTC 2023-329 and Broadcasting Order 2023-330 – The CRTC issued both the Online Undertakings Registration Regulations and an exemption order exempting certain classes of online undertakings from the new regulations. Under the new regulations, online undertakings that broadcast audio or audio-visual content were required to register with the CRTC by November 28, 2023. Such services include streaming services, social media services, subscription television services that are available online, radio stations that live-stream over the internet, services that offer podcasts, and services that offer unique transactions allowing the user to stream or download content. Among other specific classes of online undertakings, those that derive less than $10 million in annual Canadian gross revenues are exempt from the requirement to register under the regulations.
  • Broadcasting Regulatory Policy CRTC 2023-331 and Broadcasting Order CRTC 2023-332 – The CRTC issued an order containing conditions of service that apply to online undertakings relating to: information gathering, undue preference and undue disadvantage, making content available over the internet, and filing financial information. The conditions also contain criteria that exempt certain online undertakings from their application. Those criteria are consistent with those established under the Online Undertakings Registration Regulations.

Decisions

  • Telecom Decision CRTC 2023-196 – The CRTC reviewed its approach to rate setting for wholesale telecommunications services. The CRTC determined that Phase II costing should remain its primary wholesale rate-setting approach. The CRTC also directed wholesale service providers to provide market-level information when submitting rate-setting applications for any new or existing services.
  • Telecom Decision CRTC 2023-358 – As part of its ongoing review of the wholesale high-speed access framework, the CRTC directed large incumbent telephone companies to provide temporary wholesale access to their fibre-to-the-premises networks in Ontario and Quebec within six months of the date of this decision. The CRTC also established interim rates that wholesale-based competitors will pay those incumbent companies for access. On November 16, Bell Canada asked the Federal Court of Appeal for leave to appeal this decision and sought an interim stay of the decision pending the Court's ruling on the request for appeal.
  • Telecom Decision CRTC 2023-422 – The CRTC approved the final rate large telecommunications companies are required to pay in 2023 to support network deployment in unserved and underserved areas. The CRTC also approved an interim rate for 2024 contributions. These contributions are collected from all Canadian telecommunications companies that have more than $10 million in Canadian annual telecommunications revenues.

Innovation, Science and Economic Development Canada (IESD)

  • Consultation on Copyright in the Age of Generative Artificial Intelligence – In October 2023, ISED launched a consultation to gather Canadians' thoughts on generative AI tools and the implications for copyright holders to give consent and receive credit and compensation for the use of their works. The four areas on which ISED continues to seek information are: views on technical aspects of AI; views on how the copyright framework applies to text and data mining activities; views on how the copyright framework should apply to AI-assisted and AI-generated content; and views on questions related to copyright infringement and liability raised by AI. Due to the overwhelming interest in the consultation, the initial December 4 deadline was pushed back to January 15, 2024.
  • ISED releases update of RSS-102 — Radio Frequency (RF) Exposure Compliance of Radiocommunication Apparatus (All Frequency Bands) – In December 2023, ISED released Issue 6 of RSS-102, which sets out the requirements, measurement, and simulation techniques to be employed for evaluating RF exposure compliance of Category I and Category II radio equipment within the vicinity of the human body. Updates in Issue 6 relate to: reformatting RSS-102 into a series of standards (and adding companion standards) as well as adding and revising exemption limits and separation distances.
  • ISED Minister launches voluntary code of conduct relating to advanced generative AI systems – The Code identifies measures that organizations are encouraged to apply when they are developing and managing general-purpose generative AI systems.
  • 3800 MHz auction – Process and results – Bidding in the 3800 MHz spectrum auction began on October 24, 2023, and ended on November 24, 2023. This band has historically been used to provide fixed wireless services and fixed satellite services, but has been recognized as key spectrum for 5G networks. 98 rounds of bidding took place over 21 business days. 4,099 licences were awarded to 20 Canadian bidders, including 870 licences to small and regional providers.
  • Government of Canada joins the Global Coalition on Telecommunications – Canada has joined the United Kingdom, the United States, Australia, and Japan in launching the Global Coalition on Telecommunications. This Coalition intends to foster diverse supply chains, secure and interoperable standards, and innovation in the telecommunications sector.

Court Decisions

  • Voltage Holdings, LLC v Doe #1, 2023 FCA 194 – The Federal Court affirmed the minimum evidentiary requirements to establish direct and authorizing copyright infringement and clarified the extent to which an adverse inference may be drawn in the context of online copyright infringement.
  • Telus Communications Inc v Federation of Canadian Municipalities, et al – The Supreme Court granted Telus' request for leave to appeal from a decision of the Federal Court of Appeal. The Federal Court of Appeal had found that the term "transmission line" under section 43 of the Telecommunications Act does not include wireless technologies. This determination means that the CRTC does not have jurisdiction to address disputes over carrier access to public rights of way for the deployment of wireless infrastructure.
  • Google LLC v Canada (Privacy Commissioner), 2023 FCA 200 – The Federal Court of Appeal found that Google's search engine is subject to the Personal Information Protection and Electronic Documents Act ("PIPEDA"). The Federal Court of Appeal determined that Google's search engine does not fall under PIPEDA's journalistic purposes exemption because it merely facilitates access to information by indexing and presenting search results, rather than offering an opinion or partaking in any actual content creation.
  • Totem v Connect, 71-2023-01 – The Copyright Board dismissed CONNECT Music Licensing Service Inc.'s ("CONNECT") motion to dismiss Totem Media Inc.'s ("Totem") application to fix the royalties Totem pays for the right to reproduce published sound recordings in CONNECT's repertoire for the purpose of supplying background music to businesses. The Copyright Board found that Totem's application met the statutory requirements and declined to deny the application without considering the merits.

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