OTTAWA – Three of Canada’s largest wired and wireless operators, and one independent, assembled on Parliament Hill Wednesday afternoon to discuss revisions to the Copyright Act.
Independent ISP Teksavvy had the stage first and vice-president of regulatory and carrier affairs, Andy Kaplan-Myrth, reiterated his company’s commitment to network neutrality and the privacy rights of their customers, including when it comes to copyright. He reminded the politicians on the committee TekSavvy’s appearance at the Standing Committee on Industry, Science and Technology, was as a far different operator than the likes of Bell, Rogers and Shaw. Teksavvy is just an ISP and owns no content
With the advent of the 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), Kaplan-Myrth said Teksavvy had to devote significant resources to develop the systems necessary to receive and process those notices, but that maintaining those systems continues to pose logistical challenges to the company due to its relatively small size.
He admitted Notice and Notice offers a reasonable approach to alleged copyright infringement as it balances the interests of rightsholders and end users. Four years following its implementation, however, the company identified a number of ways the regime could be improved upon.
Kaplan-Myrth said a standard was needed which would allow ISPs to process notices automatically in a way consistent with Canadian law. Where the company is on the receiving end of thousands of notices per week, many of which utilize different templates, resulting in more than half of the notices, namely those from the U.S., having to be manually processed.
Notice forwarding, he said, is a service Teksavvy provides rights holders at no cost and for which they are expected to provide a 100% service level, which he believes is not sustainable.
Teksavvy proposed a fee be established which would allow ISPs to recoup some of the costs associated with processing notices as no such mechanism currently exists. “Even a small fee would help transfer the costs back from ISPs to rights holders and constrain the volume of notices,” Kaplan-Myrth said. “We need to create some economic pressure to prevent [the volume of notices sent] from ballooning indefinitely.”
Another concern, he said, is the extraneous content contained in some copyright notices. He said some of the language contained in select notices is rather intimidating and stands to violate customer privacy, adding that some notices don’t reference Canadian law whatsoever. Where ISPs are currently required to forward notices containing extraneous content, he said it doesn’t fit the Notice and Notice regime and that they should be revised to contain only the elements they are required to contain.
On the matter of website blocking (such as the FairPlay initiative supported by many in the industry, including Bell and Rogers), Kaplan-Myrth said TekSavvy’s stance outlined earlier this year before the CRTC, is that the company remains staunchly opposed to the practice.
“Simply put, site blocking would be a violation of common carriage and network neutrality without being especially effective, all without any urgent justification.” – Andy Kaplan-Myrthm TekSavvy
“Simply put, site blocking would be a violation of common carriage and network neutrality without being especially effective, all without any urgent justification,” he said. “Teksavvy encourages you to oppose any site blocking proposals.”
Robert Malcolmson, Bell’s SVP of regulatory affairs, highlighted his company’s $900 million annual commitment to Canadian content, and said online content theft is a growing problem throughout Canada. Piracy-related websites now reach more than 15% of Canadian households via illegal set-top boxes. Additionally, he says there were 2.5 billion visits to piracy websites in 2017, while in 2016, one in three Canadians obtained music illegally.
Bell believes the most urgent task facing the Copyright Act committee is the modernization of the Act and related enforcement measures to meet the challenges posed by global internet piracy without burdening legal business. Malcolmson clarified this doesn’t mean targeting individual Canadians accessing illegal material, but rather addressing the operators of websites and services where copyrighted material is being illegally obtained on a commercial scale.
The company subsequently put forward a number of recommendations to the committee.
“Modernize the existing criminal provisions in the Act. Criminal penalties for organized copyright crime are an effective deterrent that do not impact individual users or interfere with legitimate innovation,” Malcolmson said, noting the current provisions in the Section 42 of the Copyright Act are outdated, as it speaks only of “illegal copying.”
Increased public enforcement of copyright is another improvement that Bell would like to see. Malcolmson says that in the U.S. and the U.K., law enforcement and other public officials are actively involved in enforcement action against the most serious offenders. The company suggests the creation of an administrative enforcement office and that it direct the RCMP to prioritize digital piracy investigations.
He said Bell would also like to see a provision that would empower courts to order intermediaries – ISPs, webhosts, domain name registrars and search engines, among others – to contribute to remedying copyright infringements by taking down offending websites and delisting search engine results, along with other actions. This is the FairPlay proposal now before the CRTC.
“We need new tools to combat this threat to rights holders and to our Canadian broadcasting system.” – Dave Watt, Rogers Communications
Speaking on behalf of Rogers, David Watt, the company’s SVP of regulatory affairs, said the company supported the Notice and Notice Regime, but since then, Canadians have fundamentally changed the way they obtain and view stolen content. “While illegal downloading remains a major problem for rights holders, illegal streaming has become the primary vehicle in which thieves make stolen content available,” Watt said. “We need new tools to combat this threat to rights holders and to our Canadian broadcasting system.”
Watt presented two possible amendments to the Copyright Act that it felt could have a positive impact:
“The Act should make it a criminal violation for a commercial violation to profit from the theft and making available the exclusive copyrighted content on streaming services.”
The company is also proposing the Act allow for injunctive relief against all intermediaries that comprise the online infrastructure distributing stolen content. Watt said jurisdictions including the U.K. and Australia already have such measures in place. He noted that this provision was also included in the FairPlay application.
Shaw Communications’ Cynthia Rathwell, the company’s VP, legislative and policy strategy, said her company recognizes the need to balance the rights of the copyright regime along with the interests of each component of the copyright ecosystem. “This balance is essential to Canada’s interest in maintaining a vibrant digital economy,” she said. “Overall, our Copyright Act already strikes an effective balance subject to a few provisions that would benefit from targeted amendments.”
Rathwell said extensive changes are neither necessary nor in the public interest as they would upset Canada’s carefully balanced regime, jeopardize policy objectives of other Acts of Parliament that co-exist with copyright as a part of a broader framework that includes the Broadcasting and Telecommunications Acts.
“Proposals to increase the scope of the duration of existing rights introduce new entitlements or narrow the scope of existing exceptions would increase the cost of digital products and services for Canadians, undermine investment, innovation and network efficiency, and impact Canadians’ participation in the digital economy,” Rathwell said.
“Fundamental changes to the digital marketplace cannot be offset by new legislative entitlements or protections.” – Cynthia Rathwell, Shaw Communications
It is Shaw’s view that stakeholders arguing for new entitlements or limitations seek a simplified response to global market developments that are in turn impacting the production, distribution, consumption, and valuation of both copyrighted works and goods and services provided by most industries.
“The responses of most businesses, including Shaw, to market disruptions have been to invest, innovate, diversify and improve the quality of customer service,” Rathwell said. “Fundamental changes to the digital marketplace cannot be offset by new legislative entitlements or protections.
“Calls for new rights appear to be based on the suggestion that copyright is a tool for the promotion of cultural content. Attempts to use copyright as a cultural instrument would undermine the achievement of domestic policy objectives established by other statutes.”
Like its peers, Shaw recommended revisions be made to the Notice and Notice Regime in order to improve its effectiveness, including the transmission of notices to ISPs electronically and in a prescribed form.
The company would also like to see rights holders have the ability to enforce action against commercial-level infringement, however, Shaw is not officially a part of the FairPlay coalition.
