The latest generation of adults has grown accustomed to having
any video or music content available immediately, often without charge.
In response, producers and distributors of media have developed business
models and techniques to protect their interests. One such technique,
geo-blocking, has become a ubiquitous part of the internet experience
for users outside of the United States, to the extent that entire
industries have developed to address this method of controlling
distribution rights.
The techniques for bypassing Geo-blocking are a recent development
and, as such, their legality has yet to be challenged in a Canadian
court of law. By examining decisions relating to the last great wave of
telecommunications – satellite television – it is possible to anticipate
the arguments of both sides of the issue and to bring precedent to bear
on the question of the legality of these bypass methods.
Geo-blocking is the practice of preventing users from viewing Web
sites and downloading applications and media based on location.
Geo-blocking is accomplished by excluding targeted Internet Protocol
(IP) Addresses. [i] American producers of entertainment contact, in
order to secure distribution rights through Canadian television
channels, must agree to block access to their content from any location
where they have made arrangements with a Canadian distributor. In this
way, Canadian distributors can secure their exclusive rights to
distribute that content. Without these arrangements in place, the
American producers would find it impossible to access the Canadian
television marketplace. [ii]
American providers of online content, such as Hulu.com and Comedy
Central are years ahead of their Canadian counterparts in terms of the
quantity and quality of their online programming. Many Canadian viewers
would prefer to bypass these geographical restrictions and go straight
to the source for their entertainment. With that in mind, a number of
entrepreneurial software developers have released Virtual Private
Network (VPN) masking software that in effect “cloaks” the user’s IP
address and substitutes in its place an American IP address that is
unblockable by most American content providers.
These methods of circumvention have yet to be challenged in a
Canadian court. It is simply a matter of time before the licensed
distributors of blocked content seek to protect their interests against
either the users of or distributors of VPN masking software in Canada.
It may be informative to examine one instance where a similar issue was
before the court to show how the Radiocommunications Act[iii] (The Act) may be applied to this issue.
In Bell ExpressVu Limited Partnership v. Rex[iv], the plaintiff
(Bell) sought an injunction against Richard Rex to prevent him from
providing equipment and services that would allow Canadians to access
satellite signals from American providers. Bell argued that, since they
were the licensed distributors for this content, any attempt to
circumvent that license without their permission was a violation of the
Radiocommunications Act s9.1(c), which states that no person shall:
"Decode an encrypted subscription programming signal or encrypted
network feed, otherwise then under and in accordance with authorization
from the lawful distributor of the signal or feed."
In his judgment, Brenner J. made a distinction between the
subscription content and the subscription signal. Although Bell held the
right to distribute similar content to that which was carried on the
signal, they did not carry the right to the signal itself. As such they
were not the “Lawful Distributor”, as defined in The Act. The Lawful
Distributor of the signal was outside of Canada, and therefore outside
of the jurisdiction of The Act. Although parliament could have made the
law to handle signals decrypted from outside of the country, they chose
not to do so, and it was therefore outside of the authority of the court
to enforce an injunction against the defendant.
This interpretation was correct and prudent. For a distributor of
entertainment content to make a claim on the content itself, instead of
the right to distribute that content, is an overreach and not justified
by the current legislation. If the Canadian television broadcasters wish
to protect their interests, they should make representation to
parliament to modify the Radiocommunications Act.
The definition of lawful distributor still stands in relation to VPN
masking software. By bypassing the restrictions placed on Canadian
consumers, this software is not violating the distribution rights of the
networks. They are can continue to provide content under subscription
to the Canadian marketplace free from interference from anyone using the
software. If the American content providers wish to pursue claims
against the producers of the masking software (the majority of which are
located in California), they are free to do so, outside of the Canadian
courts.
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[i] “Geo-blocked.” PC Magazine. http://www.pcmag.com/encyclopedia_term/0,1237,t=geo-blocked&i=61864,00.asp 11/23/2012
[ii] Brioux, Bill. “Denied the right to watch TV online? You've been geo-blocked” The Toronto Star. http://www.thestar.com/entertainment/television/article/583846--denied-the-right-to-watch-tv-online-you-ve-been-geo-blocked 11/23/2012
[iii] Radiocommunications Act R.S.C. 1985 c. R-2
[iv] Bell ExpressVu Limited Partnership v. Rex [1999] B.C.J. No 3092
