Canada’s Notice and Notice Regime: The End of Speculative Invoicing (It Won’t be Missed)

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In what was an entirely predictable move, the Government of Canada has announced, in draft omnibus legislation, that it will end the practice of allowing settlement demands (speculative invoices) to be incorporated into notices forwarded by ISPs and other platforms on behalf of content rights-holders to users suspected of engaging in online copyright infringement. The demise of this practice will not be lamented by anyone except perhaps the law firm working for Voltage Pictures, the most prolific user of the system.

Buried in Bill C-86, “A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures” (a grab-bag of clean up budget items plus a raft of unrelated amendments to other legislation), is an amendment to the Copyright Act to add the following section;

Prohibited content

(3) A notice of claimed infringement shall not contain

(a) an offer to settle the claimed infringement;

(b) a request or demand, made in relation to the claimed infringement, for payment or for personal information;

(c) a reference, including by way of hyperlink, to such an offer, request or demand; and

(d) any other information that may be prescribed by regulation.

 

Recall that the requirement that ISPs (and other “digital network providers, such as universities) forward infringement notices received from rights-holders came into effect in 2015 as the so-called “Notice and Notice” provision of the 2012 Copyright Modernization Act. Prior to the passage of legislation and the entry into force of the provision, many ISPs had voluntarily forwarded rights-holder notices, but the regulation now required them to do so under penalty of a heavy fine. The “Notice and Notice” provision was so named because a rights-holder would send a notice to an ISP or platform informing them of an alleged infringement by an IP address on their network, and the service provider would in turn forward that notice to the subscriber. Other than the service provider informing the rights-holder that the notice had been delivered, no further action was required by any party.

Some have seen “notice and notice” as the Canadian equivalent of the US “notice and takedown” provisions but they are actually fairly different. First, compliance with the “notice and notice” provision by a platform is not a requirement to obtain safe harbour immunity in Canada, (or to put it another way, safe harbour is not conditional upon forwarding the notice). Thus “notice and notice” and safe harbours are not directly linked as is the case with the US provision. Second, no content is taken down, as occurs in the US. That is not to say that one system is superior to the other. It depends on the objectives of the measure. “Notice and notice” has had some effect in changing consumer behaviour but it does not remove content. “Notice and takedown” removes infringing content—but only temporarily in most cases. The system has not worked well for rights-holders with complaints focussing on the fact that no sooner is content taken down than it goes back up again, leading to calls for “notice and staydown” instead.

The purpose of the “notice and notice” legislation in Canada was to make consumers aware that their infringing behaviour was being noted and to encourage them to cease and desist. However, some creative minds quickly took advantage of this provision by inserting an “offer to settle” in the notices sent to users, even though legally the alleged (and perhaps actual) infringer was under no obligation to respond, let alone make a payment. The result was predictable as I noted a couple of years ago (Starting the New Year off Right: Effective Ways to Fight Online Piracy in Canada–(Don’t Pick on Granny!) The point of that blog was that despite the understandable temptation to go after serial infringers, there is always the possibility—indeed the probability—that some notices will be issued in error either because someone in a user’s household is misusing the internet but not the subscriber herself, an insecure internet account is being used by someone else in the vicinity without the knowledge of the subscriber or else an error has occurred in identifying the IP address (this last possibility being remote). The result was that an 86 year old grandmother received a notice saying that she (or more likely someone with access to her Internet account) had illegally downloaded a sci-fi game that would appeal to an 18 year old. The notice included a demand for payment, threatening her with the maximum amount available under the law ($5000) if she didn’t settle. She went to the press; the press predictably grabbed the story and ran with it, and the headlines gave the warning and educational system a black eye.

Responsible rights-holders and mainstream players recognize this and use the Notice and Notice system as it was intended, as an educational tool. Not that this stopped Michael Geist from attacking the “movie industry” writ large for pursuing a lawsuit strategy against consumers, claiming that “suing individuals or threatening lawsuits appears to be a foundational part of the industry’s strategy.” This was a misleading (to put it politely) headline and statement that could more accurately be described as “fake news”.

There are better ways to combat online piracy, including establishment of a due-process site-blocking regime to disable access by users to offshore pirate websites hosting or streaming infringing content. It is far more effective from the perspective of both outcomes and costs to stop the problem at source rather than trying to chase down tens if not hundreds of thousands of infringing non-commercial users. This concept was behind the proposal by the FairPlay Canada content coalition to establish an Independent Piracy Review Agency that would review complaints from rights-holders and make recommendations to the CRTC, Canada’s broadcasting and telecommunications regulator, to require ISPs to block access to such sites, after due process. The CRTC reviewed the proposal over the summer but has concluded that it does not have the legal authority to implement such a regime. The issue will now have to be dealt with by Parliament as part of the ongoing Copyright Review, and legislation may be recommended.

The site blocking system (I prefer the term “pirated content access control” as it more accurately describes what is happening) works extremely well in many jurisdictions facing the same problem as Canada. In Australia a review by the government of the site blocking regime brought in three years ago reaffirmed its effectiveness. Since the first court-approved blocks were instituted in 2016, a total of eight cases have been brought to the courts, resulting in orders blocking 85 online locations and 483 domains. This has resulted in a 53% reduction in visits to the blocked sites and a 25% reduction in visits by Australian users to pirate sites overall. The system has become “routinized” with ISPs no longer contesting the orders. Costs have been established at $50 (AUD) per site blocked.

But there are still loopholes (the pirates are quick to find every possible way to evade the controls). This has led to the introduction of amendments to the Copyright Online Infringements Act that will tighten the process and add search engines to the entities that could be served with injunctions. Canada could learn a lot from Australia in this regard.

In the meantime, your granny won’t have to be fussed about an infringement notice that she receives from her ISP because it won’t contain an “offer, request or demand” to settle the alleged infringement. That said, granny should still be aware of who is using her Internet account and for what purpose. And those younger members of the household who should know better should also be counselled that in this world, there is no free lunch. Theft of content means less content being produced, fewer jobs in the creative sector, and leakage of revenue owed to governments, rights-holders and distributors. Despite the fact that infringement notices in Canada can no longer be used as vehicles by some rights-holders to demand payment, the message is still the same. Don’t steal content.

© Hugh Stephens 2018. All Rights Reserved.

Hyperbole Alert! EFF and Cory Doctorow on Australia’s Very Effective Site Blocking Regime: What Are They So Afraid Of?

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When you see a blog with the title SOPA.au, you know the BS machine is getting cranked up over at the Electronic Frontier Foundation (EFF). The EFF and Cory Doctorow seem to be particularly frantic that Australia’s regime for blocking offshore pirate websites is not only working well but is being strengthened. Doctorow has reached into his hyperbole bag to pull out epithets to try to discredit a regime that is working very well for Australians, calling it “the world’s most extreme” and describing it as a “failed censorship system”. Doctorow claims that;

the entertainment companies insisted that the censorship system in the 2015 law would drive people away from infringement and into legit markets. Three years later, they’ve admitted failure… (and) are now calling for much more censorship in a new copyright bill”.  Continue reading “Hyperbole Alert! EFF and Cory Doctorow on Australia’s Very Effective Site Blocking Regime: What Are They So Afraid Of?”

Entering the Era of Internet Accountability: The Implications for Copyright (An Address to the Copyright Society of Australia)

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Last week in Australia on October 23 I had the honour to be invited to give a guest lecture to the Copyright Society of Australia in Sydney. My talk focussed on how the Internet has evolved over the past twenty years, leading to a severe imbalance between Internet platforms and the creative community because of the abuse and misuse of safe harbours, and how recent events have put the big platforms in the spotlight—indeed in the crosshairs of the public and politicians. Because of the unwillingness to date of the big platforms to accept real responsibility, the new era of Internet accountability that we are entering is going to be difficult for them. If the platforms cannot embrace reform and start to accept responsibility for their business models and behaviour, then governments and politicians will do it for them by changing the policy settings and rules. There will then be a risk that the pendulum could swing too far in the other direction. The big Internet intermediaries and the content community have shared interests. Distribution needs content; content needs distribution. But for this partnership to work, there has to be a recognition on the part of the platforms that fighting rights-holders and creators tooth and nail, in a form of trench warfare, is counter-productive. This is the right time to forge a new partnership between Internet platforms and the creative industries. However it will require the intermediaries to grasp the opportunity and start to be part of the solution instead of part of the problem when it comes to digital piracy and de facto free riding on the content of others. Continue reading “Entering the Era of Internet Accountability: The Implications for Copyright (An Address to the Copyright Society of Australia)”

Australia’s Revolving Door for Prime Ministers, and Copyright Modernisation: How are they Connected?

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It used to be that no one could remember the name of the Italian prime minister (PM) because this position changed so often as a result of the fragmented nature of party politics in Rome and the constantly shifting coalitions needed to form a government. No sooner did you hear the name of the PM and he was gone (yes, it was always a he; there has never been a female prime minister of Italy). Now it seems that Australia has usurped the dubious honour of having the fastest revolving door for prime ministers. Continue reading “Australia’s Revolving Door for Prime Ministers, and Copyright Modernisation: How are they Connected?”

FairPlay Canada, the CRTC and OpenMedia: Who Got the “Big Win” on Pirate Site-Blocking?

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The CRTC’s decision on October 2 to deny FairPlay Canada’s application to implement a proposed website-blocking regime to address copyright piracy has not ended the issue although it has brought this phase of the process to a conclusion. The CRTC determined that it did not have jurisdiction under the Telecommunications Act to implement the proposal. This being the case, it denied the application without considering its merits. However, in its ruling the CRTC stated; Continue reading “FairPlay Canada, the CRTC and OpenMedia: Who Got the “Big Win” on Pirate Site-Blocking?”

The new NAFTA (USMCA): What it means for Copyright Industries in Canada

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The first stage of the long saga of NAFTA renewal is over. Agreement in principle was achieved at the 11th hour on September 30 when Canada joined the previously agreed US-Mexico Agreement, just prior to the US Administration’s deadline imposed because it needed to notify Congress of the text of the Agreement by October 1. It has been relabelled as the US-Mexico-Canada Agreement (USMCA) since, in the US at least, NAFTA is a dirty word despite the fact that much of the agreement preserves what was in the original NAFTA Accord. Continue reading “The new NAFTA (USMCA): What it means for Copyright Industries in Canada”

The Ius Imaginum of Ancient Rome: Was it the first Copyright Law?

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As any student of copyright knows, we can trace copyright law back to the Statute of Anne in 1709, (entered into force on April 10, 1710 as the Copyright Act of 1710), when the British Parliament passed the first legislation to protect the rights of British book publishers. The initial period of protection was 14 years. According to “commonly accepted wisdom” (i.e. Wikipedia), this was the first statute to provide for copyright regulated by the government and the courts, rather than by private parties. From there, copyright law evolved into the national and international regime that we know today, including its inclusion in the US constitution as Article 1.Section 8. Clause 8., giving to Congress the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Is the Statute of Anne the first legislation to protect copyright as the expression and reproduction of ideas and images? I always thought so. After all, that was what Wikipedia said so it must be true! Continue reading “The Ius Imaginum of Ancient Rome: Was it the first Copyright Law?”