Why the mechanism may be required under international treaties to protect copyrights
By Ahmad Hathout
OTTAWA – A bevy of organizations representing copyright holders spanning several continents are asking Canada’s Federal Court of Appeal to allow them to argue the merits of site blocking to protect their content rights online, suggesting the mechanism may actually be required of Canada under international treaty obligations.
A dozen organizations – including book publishers, research and educational journals, music industry groups and sports networks including DAZN and the English Premier League – wish to argue as interveners that TekSavvy’s appeal against a website blocking order of the Federal Court in November should not be allowed because it would significantly impact the ability of the organizations to protect their copyrights online.
The court ordered ISPs to block certain website which were selling access to content for which they did not have the rights.
The organizations, which have experience obtaining blocking orders in other jurisdictions, filed leave to appeal applications with the court on May 8, in which they argue TekSavvy is wrong to claim that the court does not have jurisdiction to impose a blocking order, and that such an order is available in the Copyright Act and can be imposed without upsetting freedom of expression laws.
In fact, the group argues the blocking orders are “expeditious” methods to prevent and deter infringement and “is consistent with and is or may be required to enable Canada to fulfill its treaty obligations in respect of copyright.”
Canada has treaty agreements with countries that have imposed site-blocking orders. The parties in the matter said they have obtained such orders in countries including the United Kingdom, Ireland, Spain, Belgium, Denmark, Italy, France, Germany, Sweden, Austria, Norway, and Singapore.
TekSavvy, the only ISP to oppose the merits of the site-blocking motion, filed an appeal against the country’s first such order targeting alleged IPTV pirate GoldTV. The Chatham-based company argued that site-blocking isn’t available in the Copyright Act; causes friction with the principals of net neutrality and runs afoul of section 36 of the Telecommunications Act because a change to the content on the networks would require CRTC approval; and the court inappropriately imported factors from foreign jurisdictions into its decision.
It also says the Canadian broadcasters have larger site blocking plans in mind.
If granted leave, the organizations will argue that website blocking does not violate free expression rights, is available under copyright law, and the court should balance the interests of copyright holders, ISPs and internet users when deciding whether or how to grant blocking orders.
“If blocking orders are not available in Canada there will be an erosion in the belief that there should be payments for accessing and reproducing works.”
The parties “have extensive experience in how these orders can be calibrated to sensitively balance the need for these orders to be effective and to protect the rights and interests of Internet service providers (ISPs) and Internet users,” said one submission, which includes the International Publishers Association (IPA), International Association of Scientific, Technical and Medical Publishers (STM), American Association of Publishers (AAP), the U.K.’s Publishers Association (PA), Canadian Publishers’ Council (CPC), Association of Canadian Publishers (ACP), the English Premier League, and DAZN.
“Blocking orders are often the only practical way in which markets can be protected from being flooded with access to infringing works,” they argue. “If blocking orders are not available in Canada there will be an erosion in the belief that there should be payments for accessing and reproducing works. This would also undermine the rule of law that applies on the Internet as it does to everywhere else.”
The organizations said they are “concerned” that denying a blocking remedy, or subjecting to it conditions that “limit[s] its usefulness, or which is based on reasons that a blocking order violates fundamental rights of freedom of speech, could have global impacts on the enforcement of copyrights.”
They argue Canada agreed in international treaties to ensure that right holders can get “effective and expeditious action” against copyright infringement online. In 2012, Canada enacted the Copyright Modernization Act (CMA) and in 2015 introduced the notice-and-notice system, which requires ISPs to automatically send a warning to alleged infringing subscribers at the request of a rightsholder.
The Canadian Music Publishers Association, the International Confederation of Music Publishers, Music Canada, and the International Federation of the Phonographic Industry also filed a joint submission to intervene in the case. They argue the court does have jurisdiction under the Copyright Act to grant a site-blocking order against ISPs, which are not directly liable but facilitate copyright infringement, they said.
“Nothing in the text or statutory context of the Copyright Act, including the so-called ‘notice and notice’ regime and the safe harbour provisions that insulate ISPs from liability for copyright infringement in certain circumstances, abrogates that jurisdiction,” they argue.
“It is an internationally recognized legal norm that statutory safe harbours do not interfere with the availability of site-blocking orders against ISPs,” it added.
In arguing for international harmonization of copyright protections, the music groups cite the 2012 CMA, which states: “in the current digital era copyright protection is enhanced when countries adopt coordinated approaches, based on internationally recognized norms.”
“Therefore,” the music groups argue, “unless the legislation expressly provides otherwise, the remedies available to copyright owners ought to be interpreted in a manner consistent with Canada’s international treaty obligations and international legal developments,” using the examples of the WIPO Copyright Treaty (WCT) and the WPPT.
It’s not known at this time when the court will rule on the interveners.
