A 'Whole New World' of Copyright Infringement: Online Piracy

December 4, 2018

Online piracy has been an issue that the entertainment industry has been facing for years. From apps to streaming sites and internet streaming devices, consumers are finding newer and cheaper ways to watch live television and motion picture films. Though most of these services allow consumers to watch copyrighted content legally, of the users that have internet streaming devices in Canada, about seventy percent are using these devices to stream copyright infringing content.

The IPTV box has been the most recent platform to allow users to easily stream unlicensed media. Given that advancements in technology often outpace legislative reform, establishing the legalities surrounding illegitimate IPTV boxes has been difficult. This is especially true when considering that the developers and resellers of these boxes are finding creative ways to circumvent the few common law rules that have been established.

Most recently, the Court in Bell Canada et al v 1326030 Ontario Inc dba ITVBox.net et al ordered an interlocutory injunction against retailers of set-top boxes that were pre-loaded with copyright infringing applications [1]. Interlocutory injunctions are the most sought-after remedy, and often granted given that there a serious question to be tried, irreparable harm, and the balance of convenience is in favour of the person requesting the injunction [2]. The Court further noted that the statutory defence at section 2.4(1)(b) of the Copyright Act, in which providing the means of telecommunication does not amount to a communication, was not available to the Defendants as their actions related to the sharing of illegal content [3].

However, the defendant continued to sell copyright infringing devices, arguing that the boxes sold after the issuance of the injunction were not pre-installed. Rather, the purchaser now had to take steps to actually gain access to the unauthorized content [4]. The steps were minimal and often guided by a wizard to ensure the successful installation of these copyright infringing applications. The Court determined that the fact that the box did not immediately provide these materials did not mean that this type of box was removed from the scope of the injunction – the device itself contained all that was needed to access the content.

With technology consistently changing the way not only users consume pirated content, but also the way developers make the unauthorized content available, it seems inevitable that the consumption of unauthorized content has increased exponentially in Canadaover the years. In Bell Canada et al v 1326030 Ontario Inc dba ITVBox.net et al, the Court writesthat “[t]his is not the first time a new technology has been alleged to violate copyright law, nor will it be the last [5].” The question remains as to howcopyright law will adjust to deal with this changing environment.

One prominent suggestion is to allow rights holders to obtain injunctive relief against intermediary service providers [6]. The argument being that since Internet intermediaries can facilitate access to illegal content, they are best able to reduce the harm that is caused by online piracy – a principle that has been long recognized throughout Europe [7]. However, by taking legal measures to protect the sharing of unauthorized content, does this have the potential to halt innovation? As stated in Re:Sound v Canadian Association of Broadcasters, “[c]opyright protection exists because we find the works it protects valuable … [through] encouraging learning, fostering creativity, exciting discussion … It is because of these benefits that we desire to encourage copyright protected works and also desire to provide wide access to them [8].”

The development of internet streaming devices has created a whole new world for online copyright infringement – a world, that it seems, is not readily equipped to deal with the challenges that come with it.

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[1] Bell Canada et al v 1326030 Ontario Inc dba ITVBox.net et al, 2016 FC 612 [Bell Canada].[2] RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311.[3] Copyright Act, RSC 1985, c C-42 at s 2.4(1)(b).[4] Bell Canada v Wesley et al, 2018 FC 66.[5] Bell Canada, supranote 1 at para 38.[6] Wendy Noss, Opening Statement before INDU, Standing Committee on Industry, Science and Technology – Statutory Review of the Copyright Act (Toronto: MPA-Canada 2018).[7] EU Copyright Directive, 2009/29/EC, art 8.3.[8] Re:Sound v Canadian Association of Broadcasters, 2017 FCA 138, at para 90.