By Denis Carmel
OTTAWA – The Supreme Court earlier this month opened a file from TekSavvy in which the Internet service provider (ISP) asks for leave to appeal a Federal Court of Appeal ruling on site-blocking.
In a May 2021 decision, the Federal Court of Appeal (FCA), ruled the Federal Court has the authority to order ISPs to block sites that are infringing on the rights of content creators by disseminating their content online without permission.
When the Federal Court issued the order in November 2020, it was the first time such a remedy was used and TekSavvy, a “pure” ISP appealed the decision to the FCA. We say pure in the sense that those who sought the site-blocking order (Rogers, Bell and TVA) are rights holders as well as ISPs.
“In granting and upholding this order, neither the motion judge nor the Federal Court of Appeal seriously considered whether it was appropriate for a court to fashion such a novel remedy in light of the fundamentally statutory nature of copyright law and the Copyright Act’s status as an exhaustive code. In so doing, the courts below added a new arrow to copyright owners’ quiver that disrupts the balance Parliament struck between the interests of copyright stakeholders,” TekSavvy’s memorandum of arguments to the Supreme Court states.
The issue is one where, as sometimes happens, the legislation is lagging technology and fails to protect, as in this case, the rights of creators. In this instance the plaintiffs went to the courts to find a remedy in a statutory vacuum. This is not a situation that is specific to Canada.
All of this is happening while the federal government is conducting a consultation to review the Copyright Act.
A review of the Copyright Act must be conducted every five years, as stated in the statute itself, and this issue will be central, but it is not clear how a minority Parliament will balance the various interests of stakeholders.
And if no remedy is found, as TekSavvy argues, there is a question of “what room is left for a court to craft its own remedy where Parliament has declined to include precisely that remedy in a comprehensive statutory scheme of rights and remedies?”
TekSavvy requested permission to appeal to the Supreme Court on Aug. 25, 2021, and as we know, most of those requests are rejected but we think the court will be tempted to look at this thorny issue.
