Using TPM Protections to Label Consumers as Thieves
The first battle cry was heard this past summer when Bell Media president Mary Ann Turcke announced that “it has to become socially unacceptable to admit to another human being that you are VPNing into U.S. Netflix.” And with that bold proclamation, a gauntlet had been thrown down and Big Media had declared war on those who it deemed to be robbing them of the compensation they so justly deserved. It almost seems telling that the disdain toward the practice of geo-dodging – using virtual private networks (VPNs) to access geographically restricted services – came from a normative stance rather than relying on the coercion of positive law. It was a well planned strategy to appeal to the public’s sense of morality where the law isn’t able to provide a bright line on the issue. As Michael Geist stated, “while Canadian broadcasters may be unhappy with subscribers that access the U.S. service, the problem is primarily a competitive issue, not a legal one.”
The ambiguous legal footing comes from recently introduced provisions in Canada’s Copyright Act that prohibit the circumvention of technical protection measures (TPMs). These provisions tie circumvention of a TPM to infringement of the protected work. It is unclear whether geo-blocking – measures taken by online sites to limit access to their products or services to a particular geographical area – is considered to fall under the category of TPMs and, further, whether circumvention through the use of a VPN would be deemed as infringement. Nevertheless, content owners insist that the practice of geo-blocking is properly viewed as a TPM protected under the Act. The justification lies in the assumption that circumvention of geo-blocks is for the purpose of accessing unauthorized streaming content, which is then deemed to be infringement. The biggest flaw with the assertion is that it mistakes a necessary condition for a sufficient one. While it may be necessary to have circumvented a TPM to infringe copyright, mere circumvention alone is not sufficient to conclude that infringement has in fact occurred. As many academics have pointed out, the provisions stretch the recognizable limits of the Act by creating a right of access where one previously did not exist. Any legitimacy for these prohibitions that is tied to infringement of copyright rests on a thinly-disguised faulty logic.
Even if we put issues of circumvention aside, the more interesting question is whether accessing unauthorized streaming content can be considered infringement. Has the consumer actually created an infringing copy by merely accessing streaming content in an outside jurisdiction through a VPN? When a consumer downloads even part of a file – often called “pseudo-streaming” – this likely counts as making a copy of copyrighted material. In addition, when the content is streamed as a public performance – shown to the public at large and not just close friends and family – this is likely also to be a violation of copyright. However, outside of these two scenarios, accessing unauthorized streaming content should not be viewed as an infringement of copyright. One reason to support this is that copyright law exempts temporary reproductions of copyrighted works if completed for technical reasons. The nature of the Internet is that it makes temporary copies of content as a fundamental part of how it functions. In fact, the UK Supreme Court addressed this issue in Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited [2013] UKSC 18 at [2] where it stated,
[I]f it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.
By drawing an analogy between the two, it becomes difficult to maintain that viewing streaming content is infringement while surfing the Internet is not. Arguments supporting that accessing unauthorized streaming content is infringement suggest that although the prohibition might fall under a different section of the Act, circumvention is no different than using copyright material without consent. The problem with this view is that it still assumes that merely accessing the streamed content is tantamount to infringement which is not necessarily true. Accessing these sites may be a breach of contract but, absent a clear violation of an owner’s exclusive rights, it is certainly not copyright infringement.
It’s interesting to note that the TPM provisions were introduced into Canadian copyright law back in 2012 as the price to be paid in order to join the Trans-Pacific Partnership (TPP) negotiations. As a result of coming late to the table, Canada was added to the negotiations with a “second tier” status that bound the government to terms that had already been agreed upon – including provisions relating to the protection of TPMs. For the most part, treaty obligations should be designed to promote globalization and free trade. The idea is to provide consumers access to a greater choice of products and services. However, this choice is stymied if the Copyright Act is used as a Trojan horse to introduce barriers that prevent consumers from freely accessing content. Geo-blocking better serves as a tool for geographic market segmentation rather than copyright protection. The goals of copyright policy are not advanced by provisions that grant protection to owners for the methods they use to prevent access to their works. That is an issue that is entirely outside the scope of copyright law and better suited within the realm of private contract law.