Video streaming, we all do it (or have done it at some point). It’s difficult not to in this day and age when entertainment is so easily transportable and amenable to on-the-go enjoyment, the stationary television becoming less and less the platform for watching our favourite movies and shows.
Some of us have engaged in this practice for years, but never in the context of a formal “notice and notice” regime implemented by the Copyright Modernization Act at the start of the new year. So what exactly does this regime entail and how might it affect our online viewing habits?
“Notice and notice” regime
The notice and notice system is a uniquely Canadian approach and has, in fact, been operating in an unofficial capacity for over ten years before becoming law on January 1, 2015. The regime requires internet intermediaries, such as Internet Service Providers (ISPs), to forward infringement notices sent by copyright owners to subscribers whose internet addresses have been identified as sources of possible infringement. These notices must include details on the claimant, the copyright works at issue and the alleged infringing activity.
If the intermediary fails to forward the notification, it must supply an explanation or face damages of up to $10,000. Intermediaries are also required to retain information on the subscriber for six to twelve months.
The notice and notice regime as it affects online viewership
So does this law apply to Internet video streaming? And if so, how?
It appears that very few legal concerns arise with regard to authorized online video services operating in Canada. Examples include Netflix Canada, Shomi, CraveTV, YouTube, and streaming videos that originate directly from broadcasters or content creators. Viewers who stream from these sites are unlikely to be forwarded notices of infringement because these content providers have obtained permission to make the copyrighted content available or have made the content easily removable by rights owners.
Next up for consideration are the authorized services not currently serving the Canadian market. Think Hulu, Amazon Prime, and the US version of Netflix. Here, the analysis gets a bit tricky.
Canadian users who access this content by circumventing “geo-blocks” (a method by which online service providers block users outside a particular geographic area from accessing their content) via a “virtual private network” (VPN) are likely violating the service provider’s terms of service. But that is not all.
Geo-blocks could potentially be considered technological protection measures (TPMs). A TPM is any effective technology, device or component that controls access to a work whose use is authorized by the copyright owner, or restricts the exercise of an exclusive right held by the copyright owner (section 41 of the Copyright Act). It is a prohibition to circumvent a TPM (s 41.1(1)(a)), and the copyright owner is entitled to remedies against the infringing individual (s 41.1(2)).
This being the case, circumvention of a geo-block via a VPN to stream copyright protected material might constitute an infringement and could result in the service of an infringement notice.
Finally, there are the unauthorized streaming websites that offer free content without having obtained permission from copyright owners. This is another potential scenario in which infringement can occur.
Typically, pursuant to section 31.1(4) of the Copyright Act, a person who, for the purposes of allowing the telecommunication of a work or other subject-matter through the Internet, provides digital memory in which another person stores the work does not, by virtue of that act alone, infringe copyright in the work. However, these unauthorized websites, because they are “enabling” infringement, can be shut down pursuant to section 27(2.3) if they are located in Canada.
As for users of such websites, it is currently uncertain whether their act of streaming video would be found to infringe. Under section 30.71, a temporary reproduction of a copyright protected work, if completed for technical reasons, is not an infringement. When streaming a video, either a full-length temporary copy is created on your computer via the caching process (and will be deleted the moment the video is closed), or the data is deleted as you watch. Thus, video streaming does not involve actually downloading a permanent copy of the work; at most, it merely creates a temporary copy.
However, in Canadian Broadcasting Corporation v SODRAC 2003 Inc, the Federal Court of Appeal held that “ephemeral” copies — reproductions that exist solely to facilitate a technological operation by which audiovisual work is created or broadcast — are, if unauthorized, an infringement of the copyright holder’s rights.
Although this holding was made in the context of broadcasting, it may be applicable in the streaming context. As leave to appeal to the Supreme Court of Canada was granted and oral arguments were heard recently on March 16th, we will soon be hearing the SCC’s opinion on the matter.
The jurisprudence on temporary reproductions in other jurisdictions appear just as unsettled. For instance, the US Copyright Office contends that there is no violation when “a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated,” despite some courts holding that temporary copies may in fact be violating the law. Overseas, meanwhile, the Court of Justice of the European Union (CJEU) ruled on June 5, 2014 that streaming illegal content online is legal in Europe.
However, even if viewers are found to have infringed, the only immediate recourse available to the rights holder appears to be sending a notice of claimed infringement to the host site pursuant to section 41.25(1)(b).
To be safe, it might be wise to stick to your authorized Canadian content providers. But if you are unsatisfied with the offerings of those sites and contemplate streaming an episode or two of your favourite show from an unauthorized source, tread with caution. You just might find yourself breaking bad.
Sally Kang is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.