Want faster, cheaper piracy measures
By Ahmad Hathout
OTTAWA – The country’s largest broadcasters and telecoms want new copyright legislation to include provisions that give the courts the ability to order website-blocking, prevent the CRTC from overruling blocking orders, and to expand authority over other intermediaries to choke off infringers.
Bell, Rogers, Telus, Shaw, Cogeco, Quebecor, SaskTel, Eastlink, and the Canadian Communications System Alliance also want the legislation to reflect the courts’ ability to unilaterally order search engines to de-index infringing websites, social media platforms and to force hosts, like Cloudflare, to take down infringing services and not direct users to it, force advertising networks to not put ads on such services, and financial institutions to not process payments to them.
Innovation Canada launched a consultation on a modern copyright framework for online intermediaries in April, and submissions were due at the end of May.
The recommendations to the Copyright Act allow what the service providers and broadcasters call “live” or “dynamic” blocking orders come after the Federal Court of Appeal upheld a website-blocking order against GoldTV, which sold unlicensed television content in an IPTV package.
While the courts have set and upheld the precedent, it is still unclear whether that decision will be appealed to the Supreme Court of Canada. And the telecoms do not want ambiguity.
“While [site-blocking] is the position that has been taken by the Federal Court and the Federal Court of Appeal, the ISPs seek statutory clarity because of a previous suggestion that section 36 of the Telecommunications Act could grant the CRTC the authority to approve the blocking of a website – even where a Court has already granted a similar Order,” the submission said.
Even the telecoms thought that provision in the Act, which requires any change to network traffic management get authority from the CRTC, granted the Regulator last call on site-blocking.
Now, however, the major players want to make sure the Commission doesn’t have the ability to override any court-ordered block, according to the submission.
“If the Act is amended to allow injunctive relief against intermediaries, make it clear that the CRTC cannot use its authority under section 36 of the Telecommunications Act to prohibit a telecommunications service provider from blocking access to an internet service in compliance with a court order,” the submission said.
The recommendations against a broad base of intermediaries don’t come out of the blue. They generally draw on the site-blocking case and the Supreme Court-upheld decision in Equustek, which won an injunction against Google to de-index Datalink network products and services from its search engines for alleged intellectual property infringement. The decision to force Google, an innocent third-party in the case, to de-list Datalink was first ruled in a court in British Columbia and upheld on appeal by Google at the top court.
TekSavvy, the large independent ISP that appealed the November 2019 site-blocking order, said that the Equustek decision was not the same as a site-blocking order, citing the fact Google wasn’t removing the website from the internet but rather just making it harder for search engine users to find it. The Federal Court of Appeal disagreed.
The request to clarify these particulars in law is to reconcile different federal statutes that cross telecom and copyright legislations that may conflict. And spelling out that reconciliation would eliminate said jurisdictional ambiguity, the telecoms and broadcasters say.
The site-blocking recommendations don’t end there. Drawing on additional past court precedents, the ISPs also want enshrined in law the maximum amount that they can charge for forwarding copyright infringement notices to their subscribers. Canada’s notice-and-notice system allows rightsholders to force ISPs to send warning notices to subscribers who they allege are infringing on their rights by, for example, downloading or uploading a movie.
In September 2018, the Supreme Court of Canada determined that ISPs can recover “reasonable” costs to retrieve and disclose customer identities behind IP addresses to rightsholders, who can then sue them in court.
Allowing ISPs to charge a nominal fee per notice “will discourage abuse by those copyright owners and their agents that send very large numbers of duplicative notices,” the submission said. “It will also partially compensate ISPs for the significant investments they have to make to acquire, implement, maintain, and upgrade the systems required to process and forward notices and retain subscriber information.”
The telecoms also suggest amending the legislation to ensure they are not penalized for not sending notices due to error. They also recommend capping damages due to breaches of notice-and-notice obligations at $10,000 per claimant, citing some rightsholders who assumed the position that they are owed between $5,000 and $10,000 per notice, “thereby creating legal uncertainty and risk for ISPs and the potential for excessive statutory damages,” the submission says.
Broadcaster Corus Entertainment agreed with the need to expand the authority of the courts to order measures that stem piracy against any kind of online intermediary, and that authority should go beyond just site-blocking and de-indexing. Corus wants that spelled out in the legislation.
Like the telecoms, Corus’s submission says there needs to be a provision to ensure that measures to combat piracy need a technologically neutral lens to encompass streaming services for commercial purposes. The broadcaster agrees with the major telecoms that the Copyright Act should include a provision that court-ordered measures against intermediaries are binding on the CRTC and that a new clause be adopted that overrides section 36 of the Telecommunications Act.
Corus is also asking for an expedited way for courts to combat piracy by not first requiring those hurt by infringement to bring a case directly against the defendants. Currently, the courts require all effort to bring the alleged infringers before the institution to get them to stop the activity, only going beyond that if the defendants don’t stop. In both GoldTV and Equustek, the defendants were no-shows, and the judgment against them did not initially stop their activities.
The pure-play media company is also recommending a new copyright enforcement office, akin to those in the United Kingdom and the United States, that would learn from other governments and agencies, track and monitor piracy, and develop a national strategy to combat it.
The last major review of Canada’s copyright laws occurred in 2012 and included a provision that the legislation would be reviewed every five years.
