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Canadian Journal of Law and Technology

Abstract

2014’s U.S. Supreme Court decision Aereo made waves in the entertainment and technology industry when it ruled in favour of a coterie of cable companies against an upstart start-up, Aereo Inc., retransmitting broadcast television over the internet. Little attention, however, has been paid to its ramifications to the Canadian broadcasting regime, with its vastly different regulatory scheme and an underlying objective to promote the dissemination of Canadian content. Complicating matters further is the 2012 Canadian Supreme Court decision Cogeco, where the retransmission of broadcast signals had been re-articulated as a ’user right’. This paper uses the Aereo decision as a heuristic tool to examine the Canadian retransmission regime with respect to the internet streaming of broadcast television, in which I argue that a firm employing ’Aereo’-like technology can help fulfill the CRTC’s mandate to advance the objectives of the Broadcasting Act that underpins Canadian communication law, and indeed, can and should be legal under Canada’s current copyright and telecommunications regime. I further contend that the retransmission of broadcast television is a ’user right’ in Canada and consequently does not constitute a copyright violation. The paper ends by examining the contours of the new ’user right’ to retransmission and how it relates to the existing ’user rights’ discourse introduced by the Supreme Court in CCH Canadian Ltd. v. Law Society of Upper Canada.

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