Recent Copyright Decisions - Summer 2022

• Published date: 12 October 2022
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, IT and Internet, Copyright, Broadcasting: Film, TV & Radio
• Law Firm: Goldman Sloan Nash & Haber LLP
• Author: Mr John McKeown

In this blog entry we deal with copyright developments in the last few months

A New Media Retransmitter

In Videotron Ltd v. Konek Technologies Inc. 2022 FC 256 the Federal Court considered whether the retransmission services in issue were those of a "retransmitter "or a "new media retransmitter'. The defendants designed a system making it possible to offer technological services in hotel rooms. These services included the retransmission of television content, in particular content from the TVA and TVA Sports stations, by means of a private network. The plaintiffs claimed that the defendants violated their copyright by retransmitting content from the TVA and TVA Sports television stations without their authorization. The defendants alleged their retransmission services were within the exemption provided for in section 31.

The broadcast of television content to the general public requires various forms of regulatory approval issued by the CRTC under the Broadcasting Act. In addition, the broadcaster must either own the copyright in the broadcast content or obtain a license from the copyright owner. Section 31 excludes a "new media retransmitter' from the retransmission regime. In this instance the defendant, Hill Valley Cable Cooperative (Hill Valley) had obtained an order listing it as an exempt broadcasting distribution undertaking from the CRTC. As a result, this defendant could qualify as a retransmitter and claim the benefit of Section 31, provided it was not a "new media retransmitter", that is its content was not "distributed and accessible through the Internet".

Parliament delegated to the CRTC the power to decide which broadcasting undertakings would be exempt from the usual regulatory requirements. The role of the Court was to apply the distinctions established by the CRTC and not to impose its own views.

The term" Internet" does not designate a physical communication infrastructure, but a protocol, known by the acronym TCP/IP, which allows for the exchange of data packets on a network of interconnected computers. There are networks that use other types of protocols. These networks are not part of the Internet, although they may share the same physical infrastructure.

In Broadcasting Order 2012-409, the CRTC acknowledged that IPTV technology does not use the public Internet and is not covered by the New Media Order. Even if they use the same physical connections, IPTV services are not distributed through the Internet, because they use the UDP/IP protocol rather than the TCP/IP protocol. In a subsequent decision, Broadcasting Decision 2015-184, the CRTC ruled that other technologies that do not rely on the IPTV protocol can also use a private network, excluding them from the definition of "new media retransmitter".

To determine whether Hill Valley was a "new media retransmitter', the real question was whether its services were distributed over the public Internet or a private network. The use of the IPTV protocol is one form of private network, but it is not the only one. Insofar as the VMedia decision suggests that there is a binary relationship between the public Internet and IPTV, the Judge refused to follow it, since this would be contrary to the CRTC decisions.

The television content transmitted by Hill Valley used a "tunnel" established using the L2TP and IPSec protocols. This tunnel simulates a direct connection between two private networks, in a way that makes any interception impossible. In addition, the data is encrypted. Other transmissions were through connections to the Hill Valley head-end server through a point-to-point link. These links are physically separate from those used for the public Internet. These transmissions were not "distributed and accessible via the Internet" and the architecture of the Hill Valley network was that of a "retransmitter" within the meaning of Section 31. As of the date of the order of the CRTC, Hill Valley was a retransmitter that could rely on the exemption provided by section 31.

Dynamic Site Blocking Orders

In Rogers Media Inv. v. John Doe #1 2022 FC 775 the plaintiffs sought a dynamic site blocking order building on the decisions of the court in the Bell Media Inc. v GoldTV (GoldTV FC ). The plaintiffs' own and operate several television stations and online subscription services in Canada. The focus was live NHL games. They requested a "dynamic" site blocking order relating to trying to follow and block unlawful streaming as it moved. The order issued in GoldTV FC would not work because the pirates adopted new measures to avoid detection and defeat site blocking, including moving their infringing content from site to site regularly. Court approval would be impossible before each new blocking step because these efforts need to happen in real time to be effective.

The Court issued a mandatory interlocutory injunction to the plaintiffs, although not on the terms they had proposed. They established a strong prima facie case that the unknown defendants were engaging in an ongoing breach of their copyright in the broadcasts of live NHL games. The plaintiffs will suffer irreparable harm if this is allowed to continue. Finally, appropriate conditions were imposed to minimize the risk of over-blocking of legitimate...