EDITORIAL
2 Obiter Dicta
Circumventing Geo-blocks
Using TPM Protections to label
consumers as theives
T
he 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 geoblocking 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
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