Canadian Copyright Review: My Submission on International Site Blocking

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The Parliamentary Committee undertaking the mandated five year review of Canada’s Copyright Act closed receipt of submissions on December 10 and its hearing of witnesses two days later. The next stage will be for the committee to digest the many submissions and hours of testimony it received and come forward with recommendations for the government to consider.

One of the many issues under consideration is that of establishing a means to effectively, quickly and fairly disable access by Canadians to offshore infringing content, by which I mean access to offshore websites whose primary purpose or effect is to stream infringing content, distributed without the permission of rights-holders, to consumers in many countries including Canada. This is usually referred to in its short-hand version as “site blocking”. Typically these sites are established in jurisdictions that are beyond the reach of the national courts of the target countries, and which, moreover, change locations and domains at will. Shutting them down by exerting national legal jurisdiction is, in practical terms, impossible. One very effective measure now employed in more than 40 countries is to use national means (courts or administrative agencies) to require internet intermediaries established in those jurisdictions, such as internet service providers and in some cases search engines, to block access by users in that country to the offshore sites. Instead of chasing individual consumers for accessing infringing content, or pursuing the impossible task of trying to enforce national law in a jurisdiction that is impossible to reach, national law is enforced within the relevant jurisdiction.

The system is not fool-proof because determined consumers of infringing content can always find a way around the blocks, but it has been shown by a number of studies to be widely effective in countries where it has been employed both in discouraging access to pirated content and in encouraging access to legitimate sources of content. Back in January, a coalition of Canadian rights-holders, self-styled as FairPlay Canada, submitted a petition to the Canadian broadcast and telecommunications regulator, the CRTC, proposing that an industry-funded Independent Piracy Review Agency be established to review and make recommendations (to the CRTC) in response to blocking requests submitted by rights-holders. The CRTC, after receiving multiple submissions both for and against the proposal, decided in October that it did not have the authority to require the internet intermediaries that it regulated to block sites. In effect, it punted the issue to the Copyright Act review process. If the solution to the problem in Canada lies through a court process, then legislation will almost certainly be required, as in Australia, to make such a process feasible.

In my submission to the Parliamentary Committee I recommend that amendments be considered that will allow rights-holders to obtain injunctive relief against internet intermediaries, while I document the successful implementation of similar processes in other countries, with particular reference to Australia and the UK. My submission is repeated below.

 

“Submission to the Standing Committee on Industry, Science and Technology (Copyright Act Review)

In light of the decision of the CRTC to decline to exercise its jurisdiction with regard to the establishment of a mechanism to review and recommend “site blocking” in Canada[1], it would appear that Canada will need to resort to a process of court review in order to avail itself of the benefits of this anti-piracy measure that has proven so successful in a number of other countries in curtailing piracy while encouraging greater access to legitimate sources of content. Given this necessity, as part of the review of the Copyright Act, the committee is urged to recommend the enactment of amendments to the Act that will permit rights-holders to obtain injunctive relief against internet intermediaries (platforms and internet service providers). Specifically the Act should be amended to allow copyright owners to be able to obtain injunctions, including site blocking and de-indexing orders, against internet intermediaries whose services are used by third parties to infringe copyright.

In support of this recommendation I would like to refer to the success of some other countries that have successfully employed site blocking orders, in particular Australia and the UK.

I am the author of a weekly blog on international copyright issues, (www.hughstephensblog.net) and the issue of site blocking is one on which I have written extensively. Examples of some specific blogs touching on site blocking are listed below;

https://hughstephensblog.net/2016/08/29/blocking-offshore-pirate-websites-it-can-be-both-effective-and-manageable/comment-page-1/ (August 29, 2016)

https://hughstephensblog.net/2017/04/18/disabling-access-to-large-scale-pirate-sites-site-blocking-it-works/ (April 18, 2017)

https://hughstephensblog.net/2017/10/07/would-site-blocking-disabling-access-to-copyright-infringing-websites-work-in-canada-quite-possibly-it-works-well-in-australia-and-the-uk/ (October 7, 2017)

The thrust of all these articles is that site blocking in Australia and the UK (and elsewhere) has proven to be an effective tool in combatting streaming piracy where it is applied consistently to a wide range of pirate websites. The objective of site blocking is to discourage casual users of such websites and to redirect them to sources of legitimate content. A recently released study[2] by Carnegie Mellon University (CMU) examined the effectiveness of internet site blocking to control copyright piracy in the UK. The authors (Brett Danaher, Michael D. Smith and Rahul Telang from CMU’s School of Public Policy and Management) compared their latest work to earlier research they had done where Pirate Bay—but only Pirate Bay—had been blocked in the UK (in 2012). The earlier action led to little change in total piracy and no change in paid legal streaming, suggesting that the blocking of a single site, when many alternatives remain available, is ineffective. This time, they examined the consumer response when 53 piracy websites were blocked in the UK in November 2014. To quote from their abstract,

“We found that these blocks caused a 90% drop in visits to the blocked sites while causing no increase in usage of unblocked sites. This led to a 22% decrease in total piracy for all users affected by the blocks (or a 16% decrease across all users overall). We also found that these blocks caused a 6% increase in visits to paid legal streaming sites like Netflix and a 10% increase in videos viewed on legal ad-supported streaming sites like BBC and Channel 5.”

Research indicates that site blocking will not deter all streaming piracy nor will it prevent a determined user from finding a way around the blockage, using proxy servers and other means. But it is effective against the vast majority of consumers who take the road of least resistance. If pirate sites are easy to find and easily accessible, some consumers will access them because they prefer, unfortunately, to access “free” pirated content rather than pay the modest subscription fees that would provide them access to a wide range of legitimate content. However, if a pirate website is not easily accessible, research indicates that most consumers seeking to access pirated content will turn to the next most easily-available source of content, legitimate providers. In Canada there is a plethora of content available from many legitimate sources in many languages at an affordable price and the excuse that legitimate content is not available is not valid in the Canadian context. Rather the motivation for most piracy in Canada is either habit, laziness or a preference not to pay if it is easy to access content without payment.

Australia is another jurisdiction where site blocking has been employed with great effect since passage of new legislation in 2015. The first court judgment requiring ISPs to block designated pirate websites (such as Pirate Bay and Solar Movie) was handed down in December 2016. This was the initial test of new legislation, the Copyright Amendment (Online Infringement) Act, passed in 2015. The action was brought by Village Roadshow and Foxtel. Part of the challenge is that no sooner are sites taken down, than they appear under a different guise. While the courts have ruled that follow on injunctions to block mirror and proxy sites must be under court supervision, the process in Australia has become simpler and more streamlined. Blocking orders are now uncontested by the Internet Service Providers (ISPs). Agreement was reached among the parties that the plaintiffs will pay a flat fee of AUD$50 per domain blocked to the ISPs. The question of who would pay whom and in what amount for implementing blocking orders was initially an area of contention between content producers and ISPs.

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 reduction in visits to the blocked sites of over 50% and a 25% reduction in visits by Australian users to pirate sites overall.

Research[3] conducted by the Australian government on consumer attitudes toward online copyright infringement conducted in March 2018 concluded that;

“there is a greater proportion of consumers that are 100% lawful in 2018 compared to previous years” and “legal streaming services are increasingly being used by digital content consumers and (are) having a positive impact on the reduction of, or need for, unlawful consumption.”

Another excerpt from the government’s survey of consumer attitudes is worth quoting;

“It is interesting to look at the impact of blocking unlawful sites and consumers’ attitudes and actions when encountering a blocked site. When asked what they would do if they encountered a blocked site the majority of respondents (57%) said they would ‘give up’ or ‘seek alternative lawful access’ (34%) but 7% of respondents said they would try to bypass the blocked website. When those that had encountered a blocked website were asked what actions they took, 46% said that they gave up, 19% sought alternative but lawful access and 15% sought free but unlawful access.”[4]

So successful has the Australian approach to site blocking been that it enjoys bipartisan support in the House of Representatives. The Australian Parliament has just enacted legislation[5] that will extend site blocking legislation to search engines, such as Google. The new Copyright Amendment (Online Infringement) Bill, 2018, allows the Federal Court to require online search engine providers to block search results that refer users to online locations (i.e. offshore websites) that have been blocked pursuant to requests from rights-holders. The Bill has passed the Senate and is awaiting Royal Assent. It is expected to be in force before the end of the year and will be reviewed in two years. The new legislation was deemed necessary to close loopholes in the existing legislation and to make the site blocking process even more effective.

There has been opposition in Canada to the establishment of a site blocking regime, with accusations that it will infringe freedom of expression on the internet, undermine net neutrality and will, in addition, be ineffective. The British and Australian experiences demonstrate the inaccuracy of these criticisms. The UK and Australia, no less than Canada, value freedom of expression as a cardinal principle, yet freedom of expression does not extend to the freedom to break the law by accessing infringing content. Particularly if site blocking orders are issued by courts allowing for due process, and challenges to the orders, freedom of expression arguments do not hold water. As for the criticism that site blocking is ineffective, the experience in the UK and Australia, and the forty other countries that have similar measures implemented either through the courts or transparent administrative agencies, shows exactly the opposite. Properly implemented site blocking can be an effective and low-cost means to combat streaming content piracy.

The Committee is encouraged to take action to ensure that Canada is equipped with the same tools as other countries so that the Canadian content creation and distribution industries can thrive and continue to both express Canadian culture and provide jobs and investment to workers in the cultural sector. Site blocking is an essential tool in the anti-piracy toolbox, as clearly shown by the international experience.

Thank you.”

© Hugh Stephens 2018. All Rights Reserved.

 

[1] more accurately described as disabling access to offshore websites streaming pirated, (i.e. copyright infringing), content to Canadian consumers

[2] Danaher, Smith and Telang, April 18, 2016, “Website Blocking Revisited: The Effect of the UK November 2014 Blocks on Consumer Behavior”; SSRN; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2766795 (accessed December 10, 2018)

[3] “Consumer survey on online copyright infringement 2018—Report”; Government of Australia, Department of Communications and the Arts, August 7, 2018; https://www.communications.gov.au/documents/consumer-survey-online-copyright-infringement-2018-report; accessed December 10, 2018.

[4] Ibid.

[5] Copyright Amendment (Online Infringement) Act, 2018; https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6209_first-reps/toc_pdf/18217b01.pdf;fileType=application/pdf; (accessed December 10, 2018)

The Kevin Lindgren Prize for Copyright: Insights from Young IP Lawyers-To-Be in Australia

Used with permission

On my recent trip to Australia I was honoured to be asked to participate as a judge in determining the winner of the annual Kevin Lindgren prize for the best copyright presentation by an Australian law student. Named in honour of Dr. Kevin Lindgren, AM QC, former Federal Court Judge and President of the Copyright Tribunal, this year was the third year that the prize has been presented by the Copyright Society of Australia. Dr. Lindgren was there and participated as one of the three judges, along with lawyer Alida Stanley, Australian Copyright Council Board member, and yours truly. Continue reading “The Kevin Lindgren Prize for Copyright: Insights from Young IP Lawyers-To-Be in Australia”

The Push for Platform Accountability is Going Global

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It’s no secret that the issue of internet platform accountability—holding massive internet intermediaries such as Facebook, Youtube and Google accountable for the way in which they deal (or more to the point, do not deal) with illegal content on their services– has become a hot button issue politically in many countries. The willingness to give a free pass to these internet giants, beginning some two decades ago in order not to “stifle” innovation in the digital era, has worn thin. The old adage of “don’t blame the telephone company for obscene phone calls” doesn’t cut it anymore, especially when the platforms clearly have the ability to curate and select content to push to users according to what they think individual users prefer, to identify various attributes of content on their platforms (through mechanisms such as ContentID) and to promote or demote search results, to cite some concrete examples. Continue reading “The Push for Platform Accountability is Going Global”

New Zealand Launches its Copyright Review: Calculating the Economic Benefits will be a Key Issue

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New Zealand has just launched its long-anticipated Copyright Act review, releasing an Issues Paper on November 23. This paper kick-starts a consultation process that will continue through to until next April. The release of the paper is the first stage of consultation in the review of the Act, and involves “identifying problems with the way the Copyright Act is operating or opportunities to improve its operation”. The paper outlines the background of copyright law in New Zealand, puts forward a number of factors potentially affecting the application of the law, and poses no less than 97 questions on which the Ministry of Business, Innovation and Employment is seeking input. These questions are wide-ranging and cover everything from the scope of fair dealing exceptions to the potential impact of copyright on Maori culture. Continue reading “New Zealand Launches its Copyright Review: Calculating the Economic Benefits will be a Key Issue”

Fair Use or Fair Dealing? The Debate Continues “Down Under”

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The ongoing debate as to which system of copyright exceptions works better, US style “fair use” or the “fair dealing” (specified exceptions) approach common to most countries–and particularly to those whose copyright laws are based on the UK Copyright Act of 1911–continues “Down Under”. Both Australia and New Zealand have the issue currently under review. Proponents of fair use in Australia have been provided with ammunition from two government reports, the Report of the Australian Law Reform Commission in 2014 and the Report of the Productivity Commission in 2016. Both recommended that Australia move to a fair use system based on the argument that it is more suitable for the digital economy and will support greater innovation. This argument is based on the premise that technology moves fast and specified fair dealing exceptions cannot adapt quickly enough to technological change. In other words, fair use is more flexible, or so the argument goes, because a fair use approach could be applied to new situations not foreseen by legislators at the time that fair dealing exceptions are enacted or updated. Continue reading “Fair Use or Fair Dealing? The Debate Continues “Down Under””

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. Continue reading “Canada’s Notice and Notice Regime: The End of Speculative Invoicing (It Won’t be Missed)”

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?”