22 July, 2015
In brief
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Geo-blocking is used by content owners to control access to content by territory or jurisdiction. However, tech-savvy end users can readily use virtual private networks (VPNs) and proxy servers to circumvent geo-blocks and their use has grown significantly in popularity, particularly in Australia. More recently, internet service providers (ISPs) in both Australia and New Zealand have looked at introducing a 'global mode' service, which allows users to access overseas video on demand (VOD) services overseas without the need to pay for a separate VPN service.
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In New Zealand, ISP CallPlus and developer ByPass Network Services have agreed to withdraw Global Mode, following the commencement of legal action by a number of rights holders.
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This article considers the legality of offering a global mode service in Australia
What is geo-blocking?
Geo-blocking is a tool used by a website operator to limit access to content, or to offer different content to users, depending on the location of the user. It uses one (or both) of two strategies to calculate the user’s location, namely:
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checking the user’s IP address, which will be uniquely associated with a particular ISP and, therefore, the country in which that ISP operates, and /or
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identifying the country of origin of the credit card that is being offered in payment for the content.
The results of one or both of these checks are used to determine whether the user will be granted access to the content.
Geo-blocking allows content producers and owners to control distribution channels and revenue streams for their content. For example, while making content freely available to UK viewers, both through traditional media and BBC iPlayer, BBC is able to license its content to TV channels in other countries, including Australia, bringing in revenue that enables the public broadcaster to continue generating quality content.
Global mode
Traditional VPNs or proxy servers are used to trick target websites into believing the user’s computer is based in a country in which the website and its content are intended by the content owner to be accessed. When a user accesses a website, the request from the user’s computer is sent to the VPN or the proxy server and then ‘proxied’ to the website which sees the request as coming from within an authorised country. The website then processes the request as an authorised request, and replies to the VPN which sends the response (including the relevant content) back to the user.
‘Global mode’ services combine the traditional functions of an ISP and a VPN together. The advertising for these services promises that requests sent to international VOD services will appear to come within the target market for the VOD service so, for example, a user’s requests to the BBC iPlayer will appear to come within the UK while requests to US Netflix will appear to come from within the US.
So, is this lawful?
Technological protection measures
The Copyright Act contains a number of provisions relating to technological protection measures (TPMs), being measures designed to control access to copyright content. It is a breach of the Copyright Act to offer services that circumvent a TPM.
Broadly speaking, in the case of a film, a TPM includes a device or technology (including a computer program) that prevents, inhibits or restricts the film being copied or communicated to the public.
As geo-blocks operate to restrict a film being communicated online to a user in an unauthorised territory, there is scope for an argument that, at least where a geo-block relies on a user’s IP address to control access, it constitutes a TPM for the purposes of the Copyright Act. There has been some debate about this. However, if a geo-block is a TPM, then the further argument arises that a global mode service could constitute a ‘circumvention service’, so that offering such a service in Australia would be in contravention of the Copyright Act.
Rights holders can take action under the Copyright Act to restrain the operation of a circumvention service and to seek monetary compensation for losses suffered.
Will there be litigation here?
Recent media reports suggest that at least one new Australian ISP is considering launching a global mode service in Australia. It remains to be seen whether any such launch will trigger action by any rights holders under these provisions, or any other provisions of the Copyright Act and, if it does, whether the outcome will mirror that in New Zealand.
For further information, please contact:
Rebekah Gay, Partner, Herbert Smith Freehills
rebekah.gay@hsf.com
