On March 24-25, 2021, Cassels made submissions on behalf of a coalition of Cassels clients, consisting of the International Confederation of Music Publishers (ICMP), Music Canada, Music Publishers Canada, and the International Federation of the Phonographic Industry (IFPI) at the hearing of Teksavvy Solutions Inc. v. Bell Media Inc. et al. before the Federal Court of Appeal. The Music Industry Coalition intervened at the hearing of the appeal as a friend of the court, to assist the Court in its determination of the issues on appeal.
The appeal in Teksavvy concerned whether an order requiring an Internet service provider (“ISP”) to block its subscribers’ access to websites that infringe another party’s copyrighted materials is available in equity, under the Copyright Act, or both. The Federal Court decision under appeal constituted the first time that such a site-blocking injunction had ever been ordered against an ISP in Canada. Accordingly, the decision by the Federal Court of Appeal represents the opportunity for a landmark development in copyright law in Canada.
The Music Industry Coalition consisted of parties that represent a wide range of rightsholders in the music industry, both in Canada and internationally. In intervening at this hearing, the Music Industry Coalition sought to place the subject matter of the appeal within the necessary international context, in light of the many countries around the world that permit similar site-blocking orders to help address the commercial-scale infringement of copyrighted works.
At the appeal, the Music Industry Coalition argued primarily that the existence of a site-blocking injunction is consistent with, and not impeded by, the Copyright Act, notwithstanding the statute’s ISP safe harbour provisions or “notice and notice” regime, among other considerations. The Music Industry Coalition further argued that site-blocking does not impair a user right or disturb the balance between users’ rights and the rights of copyright holders. Finally, the coalition argued that the international context is instructive as to how a site-blocking injunction is workable in practice.
Cassels represented the Music Industry Coalition at the Federal Court of Appeal.
The Teksavvy intervention follows a long history of recent interventions by parties represented by our copyright litigation team at all levels of court, including at the Supreme Court of Canada in Rogers Communication v. SOCAN (2012), SOCAN v. Bell Canada (2012), Alberta v. Access Copyright (2012), and Canadian Broadcasting Corporation v. SODRAC (2015). The team will be back at the SCC next month, representing another group of music industry organizations as interveners in York University v. Access Copyright.