Canadian copyright law may soon allow copyright holders to obtain “dynamic” site blocking orders, to address infringement of live content (such as broadcasted sports events, concerts, and award shows).
Last year, the Federal Court of Appeal unanimously affirmed in Teksavvy Solutions Inc. v. Bell Media Inc. that site-blocking orders are an available remedy in copyright infringement matters. The case involved a single business operating unauthorized subscription services that provided access to programming content over the internet, and an injunction (known as a ‘static’ site blocking order) that listed the specific website domain names and IP addresses to be blocked. That list could be updated where a judge was convinced the unauthorized streaming was being done using a different website or IP address.
Building off that decision, the Plaintiffs in Rogers Media Inc. v. John Doe 1, are currently seeking a site-blocking order the likes of which has never been seen in Canada – a “dynamic” order that will require internet service providers to take active steps to block (or try to block) users’ access to unauthorized content in real time, without specific judicial authorization relating to each IP address because the block has to occur as the live content is broadcast. The Plaintiffs’ concern is that blocking access to a single IP address is not always an effective means of preventing unauthorized access to live sporting events because of an evolution in the manner in which these streaming services provide access to their users. To circumvent enforcement efforts, servers may only be activated during the live event, may use several different IP addresses, and are often located outside Canada.
The case involves the Plaintiffs’ rights to air all live National Hockey League (NHL) games in Canada, which are alleged to be the subject of widespread, unauthorized online streaming by unidentified parties. If the dynamic site blocking order is granted, it could require internet service providers to block or attempt to block multiple IP addresses “on-demand” during a single NHL game. While such an order has never been granted in Canada (and perhaps never in North America), they have been granted in the United Kingdom and in some European countries.
Two parties sought leave to intervene, namely the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC), and Beanfield Technologies Inc. (Beanfield). While the Court granted both parties leave to intervene, with CIPPIC’s prior history of bringing a unique, public interest perspective based on its institutional role and knowledge and prior intervention experience playing a role in its granted intervention, Beanfield was granted leave on a limited basis. Beanfield is an internet service provider that operates an independent, facility-based network, and it contends that its technical configuration and network architecture is different from those of the other internet service providers already participating in the case. Beanfield’s intervention has been limited to how the order would affect it and other facilities-based internet service providers.
Whether the Court will grant the Plaintiffs a dynamic site blocking orders is significant, particularly considering the importance, immediacy and value of live broadcasted events. But there are also competing and arguable significant public policy issues, and live questions regarding the appropriate role of intermediaries like internet service providers in combatting copyright infringement. For example, in the instant matter, the Plaintiffs say they have been unable to identify the parties actually responsible for the illegal streaming because such persons hide their identities and almost all of the servers used to facilitate such unauthorized streaming are located outside of Canada. In addition, the Plaintiffs claim that even if they obtain the IP addresses for the illegal streaming sites, they have no legal mechanism to enable them to identify the individuals who have paid to use the servers for the unauthorized streaming of live NHL games. However, the Court only recently permitted a static site blocking order, so it remains to be seen how it will react to the notion of an order for which no judicial authorization is required to add an IP address and block Canadians’ access to a site.
The Canadian Federal government recently launched a consultation on the role of intermediaries in copyright matters more broadly https://bit.ly/onlineintermediaries. We are watching closely to see how this area of copyright law develops in Canada. Stay tuned.