20121126

Geo-blocking and The Radiocommunications Act.

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