By Ahmad Hathout
OTTAWA – The laws don’t need an explicit site-blocking provision for it to be used by the Federal Court as a remedy in copyright infringement cases, large broadcasters are arguing in an appeal of the country’s first site-blocking order.
In a joint submission to the court on Tuesday, broadcasters Bell, Rogers and Groupe TVA rejected an argument by TekSavvy, which appealed the November order to block GoldTV, that said site-blocking isn’t in the jurisdiction of the court because it isn’t afforded in the law. The larger broadcasters said the court has much wider latitude to resolve such issues and is not “restricted by statute.”
The responding broadcasters used the example of a trademark infringement case in the United Kingdom, a widely-cited reference jurisdiction in this case. In that case, they argue, a site-blocking order was given despite the fact that it isn’t explicitly laid out in trademark law; it is, however, a remedy in U.K. copyright law.
“The Federal Court’s ability to issue specific types of injunctions does not flow from statutes such as the Copyright Act, but from its powers in equity,” which is “virtually unlimited,” the respondents said.
The broadcasters hope to convince the court the onus shouldn’t be on showing where in copyright law site-blocking exists, but rather where the court’s powers are limited so that it can’t make such an order.
Internet service provider TekSavvy has argued that there is no jurisdiction in Canadian copyright law for site-blocking, that there are other possible remedies under the law to aid in protecting rightsholders, and, in any event, any site-blocking order must seek the authority of the CRTC, the body that administers the Telecommunications Act.
But the respondents argue that the CRTC had already declined to rule on an application before it, from an anti-piracy organization that included Bell and Rogers called FairPlay, that asked for a site-blocking regime because it was outside its jurisdiction (the laws are set by Parliament).
They also argue the common carrier principle enforced by the CRTC deals with unilateral control over content run on the networks to one’s advantage, which is not present in this case. Rather, it’s the Federal Court that determines illegal activity pervading on the networks, and the CRTC cannot overrule that determination.
The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) and the Canadian Internet Registration Authority (CIRA) have argued in their own submissions the website-blocking order interferes with the balanced approach legislators arrived at when they modernized the copyright regime; telecommunications law limits the power to order site-blocking; and, addressing arguments from other rightsholders in the case, international treaties don’t bind Canada to blocking.
The BC Civil Liberties Association will focus on how the blocking order limits freedom of expression by barring GoldTV from providing material on the internet and restricting the public from seeing it. The rights group argues that the lower court failed to consider freedom of expression when it made the blocking order and asks it to consider whether the order is adequately limited and whether it captures legal content being blocked.
However, the respondent broadcasters say the lower court judge did consider freedom of expression when he determined that “blatant” copyright infringement isn’t a protected expression under the Charter of Rights and Freedoms.
