Federal Court


Availability of injunctions
Allegations of inducement constituted serious issue

Plaintiffs were TV broadcasting companies and TV broadcast distribution undertakings while defendants were vendors of TV set-top boxes with pre-loaded applications. Plaintiffs learned that defendants’ devices could be used to access protected content produced and/or retransmitted by plaintiffs using online streaming websites, and that defendants advertised their products as way to access free television content and avoid cable bills. Plaintiffs brought unspecified action against defendants. Plaintiffs brought motion for interlocutory injunction essentially restraining defendants from engaging in conduct harmful to plaintiffs’ legitimate intellectual property interests. Motion granted. Plaintiffs demonstrated serious issue to be tried. Sections 2.4, 3, and 21 of Copyright Act gave plaintiffs exclusive rights to communicate their programs to public by telecommunication via television broadcast. Plaintiffs also had sole right to fix their communication signals and to reproduce any fixation thereof. Devices marketed, sold, and programmed by defendants enabled consumers to obtain unauthorized access to content for which plaintiffs owned copyright. This was not case where defendants merely served as conduit but rather deliberately encouraged consumers and potential clients to circumvent authorized ways of accessing content. Statutory defence provided in s. 2.4(1)(b) of Act did not apply to defendants who went above and beyond selling simple “means of telecommunication”. Allegations of inducement constituted serious issue since defendants marketed themselves to consumers specifically on basis that their “plug-and-play” set-top boxes made it easy to eliminate need for cable subscription. Plaintiffs also had strong prima facie case that devices sold by defendants were used to access content that might contravene s. 9(1)(c) of Radiocommunication Act.

Bell Canada v. 1326030 Ontario Inc. (2016), 2016 CarswellNat 4944, 2016 CarswellNat 4945, 2016 FC 612, Danièle Tremblay-Lamer J. (F.C.).

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