By Ahmad Hathout
OTTAWA – Independent internet service provider TekSavvy said this week a lower court made an error when, for the first time, it ordered Canada’s ISPs to block the websites of an alleged copyright infringer.
That’s because the Federal Court, in ordering the blocking of websites associated with alleged IPTV infringer GoldTV, leaned too much toward the rights of the copyright holders at the possible expense of free expression and the impact it could have on legitimate content, it alleged in a two-day hearing at the Federal Court of Appeal this week.
TekSavvy is challenging the first site-blocking order handed down by a lower court judge in November 2019. Broadcasters including Bell, Rogers, Telus, Shaw, Quebecor, Cogeco and Eastlink brought the site-blocking request against GoldTV after the lower court ordered the alleged infringer to stop selling unlicensed content through its IPTV products, but refused to do so. The GoldTV defendants never appeared before court.
The gist of TekSavvy’s and supporting submissions’ arguments is multifaceted, but all funnel to the central concern that the lower court didn’t do the due diligence to draw the order as a “last resort.” Before the court, they alleged the big broadcasters failed to do a better job of finding the defendants to bring to justice; they failed to meet the legal test of “irreparable harm” done to them as a result of the alleged infringer, making the claim “speculative”; that this was the “first resort” of the broadcasters; and, ultimately, the lower court should’ve found it better to defer to Parliament on matters of the Copyright Modernization Act, debate for which is still to be heard.
Within Parliament’s domain is an ability to set the standard, if any, for site-blocking provisions and it would be better suited to balancing the rights of copyright holders and free expression, those against site-blocking argued in court. They said they were also concerned about the impact of site-blocking on the internet framework as a free-flow of information and implications in the future for net neutrality – the doctrine stating that no ISP should be able to manipulate information over the internet.
On the other side, those in favour of site-blocking told the court that method has been a proven system in other jurisdictions, such as in European countries, and that determination was made after attempts at other ways to stop piracy. That is, they say, other options are not effective at stopping the scourge of theft. In that vein, they also argued that the argument that site-blocking will inevitably lead to the blocking of legitimate content on the internet – also known as “overblocking” – is unfounded.
They also argued the CRTC’s decision denying it has the jurisdiction to make a determination on a request by a consortium of broadcasters’ called Fairplay to allow for site-blocking put more emphasis on a legal conclusion.
However, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) noted the CRTC denied the request as outside its jurisdiction to set the standard. That’s because the regulator, CIPPIC argues, did not say in its decision that it can’t review a site-blocking framework that is first created by lawmakers in Parliament.
