On June 1, 2016, the Federal Court ordered an interlocutory injunction against the defendants in Bell Canada v 1326030 Ontario Inc, 2016 FC 612, from engaging in a number of activities relating to the distribution of set-top boxes pre-loaded with applications for accessing free online streaming websites. In order for a party to obtain an interlocutory injunction it must satisfy three conditions (See RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311). The conditions were considered as follows.

1. Serious Issue to be Tried

The Court found that the defendants were deliberately encouraging consumers and potential clients to circumvent authorized ways of accessing the plaintiffs’ copyrighted content (for example, cable subscriptions) and were not merely supplying a conduit to such content. For this reason the Court found that the allegation of inducing copyright infringement was a “serious issue”. In addition, the Court found that the plaintiffs had a strong prima facie case regarding the allegations of authorization of infringing activities and violation of the paragraph 9(1)(c) of the Radiocommunication Act.

2. Irreparable Harm

The Court found that the market for pre-loaded set-top boxes was rapidly growing in a way that could not be precisely quantified and even if successful at trial, the plaintiffs would not be able to locate and restrain consumers from accessing copyrighted materials. The loss of actual and potential customers was found to constitute irreparable harm.

3. Balance of Convenience

The balance of convenience was found to favour the plaintiffs because of the prima facie copyright infringement case and the finding that the defendants’ business would not unduly suffer from being restricted to selling and advertising only legal, non-copyright-infringing applications until the decision on the merits.

To read the Order and Reasons, visit:

http://www.ippractice.ca/files/2016FC612.pdf

E-TIPS® ISSUE

16 06 29

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