The U.S. Supreme
Court’s decision in American Broadcasting Companies v. Aereo, 573 U.S. ___ (2014)
is an interesting case that had the potential to change the way television programs
were broadcasted in America. The case
had a small start-up, Aereo, pitted against broadcasters including Fox and ABC.
Aereo
was providing a service through which customers could pay a small monthly
subscription to “rent” one of Aereo’s several antennae. The service essentially
allowed a subscriber to remotely record and watch via the cloud, programs being
broadcasted over-the-air with only a slight delay. Though this business model may have appealed
to consumers with its small subscription fee and cordless nature, the
broadcasters took the position that Aereo’s business model could threaten the “retransmission
fees” that cable companies pay the broadcasters for the use of their
over-the-air transmissions. These retransmission fees account for billions of
dollars of profit for the broadcasters.
“Retransmission fees”
do exist in Canada but cannot be collected for the retransmission of specialty
and pay television services (e.g. Food Network, BBC Canada, etc.) as they are
copyright-cleared. However, these fees are
collected for channels and programs that do not fall under the specialty and
pay-television category by retransmission collectives like the Canadian
Retransmission Collective (CRC).
Returning to the case at hand, the
broadcasters argued that Aereo had essentially “performed” their copyrighted
works publicly. Aereo attempted to argue
that because it was not one central antenna broadcasting to all its customers,
but several antennae transmitting to individual customers, their business model
would not constitute a “public performance” of the copyrighted works. Ultimately, the Court would decide against
Aereo, and it would be required to obtain permission from the copyright owners
of the programs it broadcasted. The
decision resulted in Aereo filing for Chapter 11 bankruptcy, and its trademarks
and other intellectual property were sold to TiVo. The decision was a 6-3
decision, and the dissenting minority noting that the broadcasters had made
similar predictions regarding the potential impact of the VCR.
Would Aereo have been decided differently
in Canada? Under the Copyright Act
(Canada), the case would likely turn on the Court’s interpretation of Section
29.23(1) which states that it is not an infringement of copyright to fix signals
and record programs for later listening or viewing, subject to the following
six conditions[1]:
(a) the individual receives the program legally;
(b) the individual, in order to record the program, did not circumvent,
a technological protection measure, (defined under Section 41 of the Act), or
cause one to be circumvented;
(c) the individual makes no more than one recording of the program;
(d) the individual keeps the recording no longer than is reasonably
necessary in order to listen to or view the program at a more convenient time;
(e) the individual does not give the recording away; and
(f) the recording is used only for the individual’s private purposes.
The first two conditions under 29.23(1) are
not problematic. Over-the-air transmissions can be legally received by anyone
with an antenna within the reception range, and the signals are not encrypted. It’s
definitely problematic whether the remaining conditions were satisfied by
Aereo’s service. However, if each of Aereo’s subscribers would have had the
exclusive use of a single antenna (i.e. the exclusive use of its signal), and
the attached equipment for recording the signal and later viewing, Aereo might
have had a different outcome in Canada.
[1] note, there is also an additional
condition under 29.23(2) which prohibits recordings generated from on-demand services.
