Sports Broadcasters’ Rights and Dynamic Site Blocking Orders in Canada

Author: Marsha Simone Cadogan

Copyright in Sport Broadcasters’ Right

The Copyright Act,[1] grants broadcasting organizations sole rights in their communication signals.[2] Copyright in sports communication signals is often one of broadcasting organizations’ most relevant intellectual property rights. Broadcasters[3] have a 50-year right to broadcast sports communication signals, starting from the first broadcast and continuing for fifty years thereafter. This gives sports broadcasters the right to record (fix), authorize the retransmission of a broadcast by another, reproduce sports broadcasts which have been broadcasted without their consent, and allow the rightsholder to share telecommunication signals with the public through subscription or another form of fee services.[4]

Infringement of Communication Signals

Infringement of communication signals includes making live sports events available to the public online through streaming platforms or other forms of telecommunication without the broadcaster’s permission. In many cases, the infringer’s identity is unknown, or the entity is located offshore, making it difficult to enforce monetary awards.

Case law indicates that injunctive relief, such as interlocutory mandatory or permanent injunctions in the form of dynamic site-blocking orders, is more likely to be granted in these situations.[5]  The first injunctive relief of this kind in Canadian history was granted in Google v Equustek Solutions Inc. (Google).[6] An injunction is granted if the plaintiff can prove that (i) there is a serious issue to be tried based on the merits of the case, (ii) there is irreparable harm, and (iii) the balance of convenience favours granting the order. In Google, the Supreme Court established that injunctive relief against non-parties is possible when it is just and convenient to do so. The Supreme Court of Canada issued an injunction against Google that compelled the search engine to de-index Datalink’s website globally based on its non-compliance with an injunctive order arising from an underlying dispute.  In cases specific to copyright infringement of sports broadcasting rights, when a dynamic site-blocking order is issued, it compels the third-party internet service provider (ISP) to block access to the copyright infringer’s websites and IP addresses.  

Rogers Media Inc. v John Does and Dynamic site blocking orders

On July 9^th, 2024, the Federal Court rendered its decision in Rogers Media Inc. et al. v John Does as respondents, and several third-party ISPs as third-party respondents.[7] Rogers Media Inc. and several other broadcasting organizations[8] own or are exclusive licensees to the live broadcast of professional sports league events. A permanent injunction in the form of a dynamic site blocking order was sought against infringers to prevent the streaming and broadcast of pirated live sports events featuring professional sports leagues. The Federal Court granted this application. Its expansiveness is a first for the Court where the target and scope of the dynamic site blocking order is concerned, as it relates to current and future live sports event coverage, specifically within specified times over two years (2023-2025). The order compels the ISPs to block access to the infringers IP addresses and websites for the duration of the National Basketball League, National Hockey League and Premier League 2023-2025 seasons.

The permanent injunctive order is wide, allowing the broadcasting organizations, with the court’s permission, to add other copyright-protected live sports events to the list, for which they will acquire licensing rights over the next two years. Its objective is to block internet customers’ access to other live sports broadcasts that have not yet been identified or whose licensing rights have not been finalized. The blockage is specific to the events window. The third-party ISPs are required to lift the block once it has been concluded that the live sport coverages have ended.[9]

Some aspects of the dynamic site blocking order issued by the Federal Court include:

• An order that the John Doe respondents immediately cease providing illegal access to the broadcasting organization’s live sports coverage, including by operating (whether directly or indirectly), maintaining or promoting illegal live stream services which allow others to access live sports streams and telecast in Canada, including:[10]

• A prohibition against sharing the live sports feed and telecast with the public by telecommunication in Canada, including allowing the public to access the live sports coverage at a place they choose.

• That the infringers and their employees and affiliates cease influencing or authorizing anyone to infringe on the rights of the broadcasting organizations to share, broadcast or re-transmit live sports coverage to the public.

The judgment also mandates that the broadcasting organizations appoint an agent to facilitate and oversee the order’s operation, including acting as the liaison between the ISPs and the broadcasting organizations. The agent’s tasks includes identifying which IP addresses should be blocked, the duration of the live sports coverage window, and when these blocks should be lifted.

What this means for broadcasting businesses

Dynamic site blocking orders help safeguard broadcasters’ rights. The order is grounded in the rights that broadcasters have in communication signals, a right which is entrenched in the Copyright Act. Canadian courts increasingly recognize the importance of copyright to the streaming or telecast of live sports events. Given the elusive nature of infringements in live sports broadcasts, dynamic site blocking can be an effective means of mitigating piracy. As with other equitable remedies, however, this is not an automatic right available to plaintiffs, but requires a successful application or motion to the court.

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[1] Copyright Act R.S.C. 1985, c. C-42 (Copyright Act).

[2] Ibid s. 2, Communication signals are radio waves transmitted through space without any artificial guide for reception by the public.

[3] A broadcaster is a body that transmits a communication signal based on the law of broadcasting undertakings in Canada. It does not include a body that primarily re-transmits communication signals. See Copyright Act, supra note 1, s.2.

[4] Copyright Act, supra note 1, s. 21(1); Premium Sports Broadcasting Inc. v 9005-5906 Québec Inc. (Resto-bar Mirabel), 2017 FC 519; Videotron Ltee v Konek Technologies Inc. 2023 FC 741.

[5] Bell Media Inc v GoldTV.Biz, 2019 FC 1432; TekSavvy Solutions Inc v Bell Media Inc, 2021 FCA 100; Rogers Media Inc. v John Doe 1, John Doe 2, John 3 and Bell Canada et al., 2024 FC 1082. Injunctive relief can also be granted in addition to damages.

[6] 2017 SCC 34.

[7] Rogers Media Inc.; Rogers Communications Inc. Bce Inc.Bell Media Inc.Ctv Specialty Television Enterprises Inc. The Sports Network Inc. Le Reseau Des Sports (Rds) Inc.  Groupe Tva Inc. Fubotv Inc. v John Doe 1, John Doe 2, John Doe 3 Other Unidentified Persons Who Operate Unauthorized Streaming Servers That Provide Or Will Provide Access To Content Owned Or Exclusively Licensed By The Applicants In Canada v Bell Canada Bragg Communications Inc. Dba Eastlink Cogeco Connexion Inc. Fido Solutions Inc. Rogers Communications Canada Inc. Saskatchewan Telecommunications Teksavvy Solutions Inc. Telus Communications Inc. Videotron Ltd. 2251723 Ontario Inc. Dba v media, 2024 FC 1082.

[8] Rogers Communications Inc., BCE Inc., Bell Media Inc., CTV Television Enterprises Inc., The Sports Network Inc., Le Reseau Des Sports (Rds) Inc., Groupe Tva Inc.and  Fubotv Inc.

[9] Supra note 4, pg. 56, Judgment in T-743-24, No. 7.

[10] Ibid, pg. 36, No. 1, 2 and 5.

This article is for general information and is not intended as legal advice.