OTTAWA – The Copyright Act review resumed in Ottawa on Monday, where representatives from Telus had the opportunity to discuss the company’s stance. The company’s appearance before the Standing Committee on Industry, Science and Technology followed last week’s presentations by Bell, Rogers, TekSavvy and Shaw.
Like TekSavvy, Telus is in the somewhat unique position of not being vertically integrated, something that Ann Mainville-Neeson, the company’s VP of Broadcasting Policy and Regulatory Affairs highlighted at the outset of the presentation.
“We are purely an aggregator and distributor of the best content there is to offer,” she explained.
As such, Mainville-Neeson said the company’s position is that some of the changes implemented in the Copyright Act revisions of 2012 fell short with respect to innovation: namely the exceptions provided by the Canadian Parliament with the right to record a program for later viewing, whether on their own device or on a network storage space.
“When the recording is made in the cloud, it’s referred to as a ‘network personal video recorder (NPVR).’ While the amendments for 2012 were a step in the right direction, the statutory language contemplates a discreet recording for each user,” she explained. “As a result, an NPVR service provider – like Telus – might need to store millions of copies of the same recording. That kind of excessive duplication is unnecessarily inefficient and costly for the network operator and creates no value for the rights holder.”
Instead, Mainville-Neeson suggested one recording of a specific program could be shared amongst all those looking to watch it, and added Telus supported this being included in the revised Copyright Act without any additional liability being incurred by the network operator.
She also told the committee the risks associated with innovation in the face of statutory ambiguity should be distributed more evenly between rights holders, innovators, and other players, and proposed certain changes be made to the statutory damages regime in the act.
“Under current rules, the potential liability posed by statutory damages can be completely detached from the actual harm suffered by rights holders or any profits derived from an infringement,” Mainville-Neeson said.
“We recommend that the courts be empowered, in all cases, to adjust statutory damage awards to align them with the circumstances of the infringement, something that the courts are already empowered to do, but in limited circumstances only. Evidence of bad faith should be required to justify statutory damages if they are disproportionate to the infringement,” she said.
“By ensuring the punitive aspect of these awards is applied only in cases where it is appropriate and desirable to do so, the Copyright Act would no longer be discouraging innovation.”
In shifting the focus of the company’s presentation to the Notice and Notice Regime, Mainville-Neeson said Telus sides with other ISPs that have been before the committee, in that it’s a reasonable approach to copyright infringement as it balances the interests of rights holders and users.
She said Telus also agrees with the proposal to mandate the content and form of the notices issued, especially with the suggestion notices be machine-readable, which would allow the process to be as close to automated as possible. The company also believes notices should not contain extraneous content, including settlement demands and advertising on where to find legal content.
“Telus also agrees with TekSavvy’s proposal that ISPs be permitted to charge a reasonable fee for forwarding notices. This is not only a matter of fairness to ISPs or innocent third parties in copyright disputes, it would also address the potential for misuse of the regime, including fraudulent notices or notices that include phishing links, which pose a security concern for consumers. Adding an economic cost to accessing the regime would go a long way towards minimizing its abuse.”
