Canada and New Zealand: Both Wrestling with Offshore Piracy and Both Seeking an Effective Solution

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Canadians and Kiwis have a lot in common. For one thing, they both live in the shadow of larger neighbours who tend to take them for granted. It is particularly galling when a stranger mistakes a Canuck or a Kiwi for one of those culturally-dominant larger neighbours because of an unfortunate similarity of accent. Here is an insider tip. For those North Americans who cannot tell a New Zealander from an Aussie, simply ask them to say the simple word “yes”. If the response is a hissing “yiss”, then you know you have a live Kiwi in front of you. And for those Antipodeans who cannot separate a Canadian from an American, ask them to say the word “about”. If the response is something like “abowt”, then you’ll know they are from south of the 49th parallel. If the response is “aboot”, then you’ve got a genuine Canuck.

Another thing that Canadians and New Zealanders have in common, (apart from common membership in the newly constituted “Comprehensive and Progressive Trans-Pacific Partnership”), is the issue of widespread online piracy from offshore streaming and file sharing sites and consideration of content-theft site-blocking as a solution. On the very day that a group of Canadian content stakeholders, who range from large vertically integrated media and telecom conglomerates like Bell Canada and Rogers, to the CBC, and the country’s major cinema chain Cineplex, to unions representing a range of workers in the content industry, announced a coalition called FairPlay Canada and unveiled a proposal to establish an “Internet Piracy Review Agency” to make recommendations to the Canadian regulator, the CRTC (Canadian Radio-television and Telecommunications Commission) to block offshore content piracy sites, I read about similar discussions taking place in New Zealand. A news report indicating that piracy was getting worse and that site blocking might be the last option to defeat the growing problem there caught my eye.

With good friends in New Zealand and having visited several times, this intrigued me, so I did a quick Internet dive. What I found truly surprised me (more below). What did not surprise me was that NZ content owners are grappling with the same issue that legitimate creators and distributors are facing all over the world. The new digital piracy model of choice is streaming and downloading from offshore websites, Pirate Bay being the most notorious, but with many others occupying the space. I learned that of the more than half of New Zealanders who regularly watch movies online, forty-three percent regularly watch from an illegal source. Less than half (forty-two percent) say they never pirate their movies. These content theft sites that many Kiwi consumers patronize have set themselves up in cyberspace, offshore somewhere, out of the reach of Canadian, New Zealand or indeed any law. They market content for which they have paid no royalties, largely monetizing their operations through advertising of dodgy products and services, not to mention outright frauds such as attaching content-theft malware and other viruses on the computers of unsuspecting consumers.

To deal with this phenomenon, more than 40 countries, including such countries as the UK, Australia, France, Italy, Portugal, South Korea and Singapore, have instituted or are in the process of instituting site blocking measures, through court review leading to injunctions to block specified sites, or via administrative processes that identify the most egregious sites and require ISPs under national jurisdiction to implement site blocking measures. Canada and New Zealand are both examining the issue. In NZ the preferred route is through the courts, with Sky (the country’s largest pay-TV provider) requesting a court injunction requiring the country’s major ISPs to block access to specified offshore websites that carry copyright-infringing content. This is what is done, for example, in the UK and Australia. In New Zealand it is more of an uphill struggle because there is no specific provision in NZ law that provides for site blocking, as is the case in Australia where a new provision in the Copyright Act (Section 115A) came into effect in June of 2015. In New Zealand, Sky is basing its request for injunctions on the basis of the Court’s “inherent” jurisdiction, the general power of a court to decide the issues that come before it, as well as an interpretation of Section 92B of the New Zealand Copyright Act that governs ISP liability.

Whether this will succeed or not, or whether an amendment is needed to the Copyright Act in New Zealand, as happened in Australia, I cannot say, but it was not the comments on possible legal impediments that surprised me. What caught my attention was the outraged, visceral and off-base reaction of the New Zealand ISPs.

The comments, according to press reports, ranged from a spokesperson for ISP Vocus New Zealand saying Sky’s demand is “something you would expect in North Korea, not in New Zealand“, to InternetNZ’s Chief Executive calling it an extreme step that was unprecedented in New Zealand. Vocus’ spokesperson did not hold back. “It isn’t our job to police the internet and it sure as hell isn’t Sky’s either. All sites should be equal and open,” he said, and continued in colourful language that Sky’s request, “was obviously bonkers”. InternetNZ’s CEO is reported to have said that site blocking “works against the very nature of the internet” and was easily evaded by people with the right skills or tools and that site blocking risked driving content piracy further underground, where it could be more of a problem. This over-the-top knee jerk reaction had me thinking, “what planet do these people live on?” I know New Zealand is a long way from many places, but don’t these executives live in the real world? This kind of Silicon Valley libertarianism, where everything that is available on the internet is sacrosanct, is so out of date. The world has moved on.

In Australia, the ISPs originally objected to having to “police” the internet. Now, having seen how well the system works, and having a stake in content themselves, they no longer oppose the blocking injunctions. In Canada, four of the country’s five major ISPs are engaged in the new FairPlay Canada coalition (the one outlier, Telus, has no content business under its umbrella). Even the term “policing” the internet is a misnomer. No-one is asking the ISPs to identify which sites are engaging in infringing behaviour in order to block them. The identification of the infringers is done by the rights-holders, who then have this verified through a transparent process allowing for appeal and redress if necessary. It could be done through the courts, as in Australia (and possibly New Zealand) or through an administrative agency such as the newly proposed Internet Piracy Review Agency (which would make recommendations to the CRTC which has the legal power to authorize ISPs to block selected websites) as in Canada.

As for the ludicrous comments equating selected and legally sanctioned site blocking with censorship, this is an old canard. In Canada copyright opponents have trotted out net neutrality and internet freedom of expression arguments. The Canadian government and the CRTC have stated that they strongly support net neutrality, a concept that the Trump Administration in the US is backing away from. However there is no correlation or conflict between blocking access to offshore content theft sites and net neutrality. Net neutrality requires that ISPs treat all legal internet traffic equally, and not favour or disfavour some content over others (usually in order to give a boost to their own content). Blocking access to unlawful content, after due process, does not affect net neutrality in any way.

Other comments made in New Zealand, such as the argument that site blocking won’t work for technical reasons, or why bother because some people will find a way around it, ignore the fact that targeted blocking works well in the more than 20 countries where it is already in place. I venture to say that the internet works just as well in Australia and the UK as in New Zealand. And yes, some techies will probably find a way around a block but just because someone could break in to your house by smashing a window doesn’t mean that you shouldn’t lock your door. Site blocking will deter the vast majority of users who try to access pirate sites, as studies in Britain have demonstrated.

If site blocking was instituted in New Zealand, rather than being an outlier New Zealand would join a growing number of countries using digital solutions to solve digital problems. Widespread online streaming and file sharing of pirated content from rogue websites hiding in unspecified offshore locations is a digital phenomenon. Establishing blocks of offshore sites through a fair and transparent process is a digital solution. It is also a means of reasserting the control of national law over those who hide in cyberspace and thumb their noses at national law and regulators. There is strong support for it in Canada. Maybe Kiwis should follow their Canadian cousins.

© Hugh Stephens, 2018. All Rights Reserved.

One thought on “Canada and New Zealand: Both Wrestling with Offshore Piracy and Both Seeking an Effective Solution”

  1. Interesting discussion, but on the note of New Zealnders and Canadians taking offence at being mis-identified for Australians and Americans respectively, here’s a trick that always seems to work. If in doubt always ask the person if they are from New Zealand or Canada depending on the context. If you are right the denizen of one of these smaller countires will be delighted at your discernment and you will have won them over with your worldy knowledge. If you are wrong Aussies and Americans have no chip on the shoulders and rarely if ever take offence. They are so used to being taken for who they are, they’ll shrug off your mistake and barely give it a second thought.

    Like

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