OTTAWA – After having paused for Parliament’s summer recess, the Standing Committee on Industry, Science and Technology reconvened in the nation’s capital on Wednesday to continue its statutory review of the Copyright Act.
Representatives from the Canadian Network Operators Consortium, Société des auteurs de radio, télévision et cinema, the Movie Theatre Association of Canada and the Professional Music Publishers' Association faced the committee this week. (Some larger organizations will face the committee next week from the likes of Bell, Quebecor, Rogers, Stingray Digital, the Canadian Association of Broadcasters, Teksavvy and Shaw Communications.)
Canadian Network Operators Consortium (a group of independent ISPs) counsel Christian Tacit insisted his organization takes the matter of copyright infringement seriously, noting many of its member organizations are also licensed or exempt BDUs.
He believes 2015’s Notice and Notice Regime (where ISPs inform alleged copyright infringing customers of theirs that they’ve been identified by content owners and to cease and desist their infringing) has largely been successful in the pursuit of the removal of copyrighted material.
“The regime continues to strike a reasonable balance between the rights of content owners and internet users for addressing allegations of online copyright infringement and achieving related educational objectives,” Tacit said, adding that the notice and notice regime could use some fine-tuning.
While it’s been effective, Tacit acknowledged the notice and notice regime could be further refined to incorporate a number of new recommendations, as put forth by CNOC members. Among the proposals put forward by the organization:
- Any revised legislation should require content owners to send notices which only contain the elements prescribed by statute. Tacit said this will prevent abuse by parties that use such notices to transmit settlement demands, advertisements or other extraneous content.
- CNOC members believe there should be a requirement for notices to be presented simultaneously in text and machine-readable code. This will facilitate the choice of manual or automated processing of notices by ISPs, depending on the scale of their operations.
- Content owners should be required to send notices exclusively to publicly searchable abuse email addresses that ISPs register with the American registry of internet numbers. Tacit said this move would help ensure notices are directed to the correct email address that ISPs wish to use for processing notices.
- The number of notices that a rights holder can send to an ISP for an alleged infringement of a work associated with a specific IP address should be limited to no more than one notice per specified period of time. Tacit cited 48 hours as an example, as he says this will prevent ISPs from being deluged with multiple notices directed at the same IP addresses for the same infringement.
Though it remains to be seen what a revised Copyright Act will look like, what must be rejected, Tacit insisted, was the approach put forward by FairPlay Canada, which he says has proposed website, IP address and DNS address blocking in an effort to stamp out online copyright infringement.
“The reality is, ISPs are the telcos of the present world. They carry the content, and are not in a position to question or examine it. In a democratic society, ISPs should not be performing state functions.” – Christian Tacit, CNOC
“IP address and DNS address blocking can be circumvented by various means including VPNs,” Tacit said. He also cautioned of non-infringing websites and providers being inadvertently caught up in such measures, which he said could lead to legal action. “This could ultimately lead to the erosion of legal and democratic values, including freedom of expression, privacy of communication and avoidance of unnecessary surveillance.”
Tacit believes the FairPlay coalition has “spared no expense” in exaggerating the impact of copyright infringement on rights holders and that the remedy being proposed by the coalition is too heavy handed.
“We’d like to caution against the ‘slippery slope’ offered by coalition member and others. At the outset of the program, most vertically integrated providers and ISPs supported the Notice and Notice regime. Additionally, the Copyright Act already contains provisions for rights holders to seek injunctions for the removal of copyrighted material,” Tacit said.
Should the CRTC decide to forge ahead with FairPlay Canada’s proposals, Tacit said ISPs must then be given the right to recover the costs of implementing and administering the blocking mechanisms they would be required to put in place. He cautions that the costs may be too prohibitive for smaller ISPs, which could end up closing down as a result.
“The reality is, ISPs are the telcos of the present world. They carry the content, and are not in a position to question or examine it. In a democratic society, ISPs should not be performing state functions.”
