When you get several major unions, the public broadcaster, five of the six largest national telecommunications providers, specialized TV providers, a major sports entertainment company, the country’s largest film festival, several major cinema exhibition chains, independent cinema operators, independent film producers and a combination of English-language, French-language and ethnic media all agreeing on one topic, that is very unusual. These various elements of the content food chain often have competing interests but the old adage of “the enemy of my enemy is my friend” is very evident here. And in this case, the enemy is content theft perpetrated by offshore pirate websites via streaming and downloading. This is the common factor behind the creation and launch of Fair Play Canada on January 29 this year in Ottawa, Canada.
They say that there is nothing like a hanging in the morning to concentrate the mind. To borrow this analogy and apply it to the content creation and distribution business in Canada, the threat of gradual strangulation by growing and pervasive piracy, much of it conducted from offshore locations beyond the reach of national law, is the motivating factor behind the coalition. Perhaps the correct analogy, as Ben Franklin said, is “hang together, or hang separately”.
The Fair Play Coalition represents all parts of the country and virtually every significant player in visual content creation and distribution in Canada, combining the clout of the full range of the Canadian content industry. There are industry giants like Bell Media, Rogers Media and Cineplex in English Canada; Quebecor, Cogeco, and Cinemas Guzzo in French Canada and Fairchild Media, TVB and the Asian Television Network in the sizeable diaspora community. Then there are unions and associations representing the full ecosystem of artistic and creative stakeholders, and for good measure the world-renowned Toronto International Film Festival (TIFF) and Maple Leaf Sports and Entertainment, the owner of a number of iconic sports franchises, such as the Toronto Maple Leafs of the NHL, the Toronto Raptors of the NBA, and the Argonauts of the Canadian Football League. This group has come together to try to craft a “made-in-Canada” solution to the global problem of widespread and growing piracy streaming and downloading sites located in cyberspace.
Piracy sites set up shop in jurisdictions that, for the most part, are impossible to reach through normal legal remedies, and in any case they frequently switch jurisdiction to evade the law. They operate on a business model of stolen content, monetizing their “products” either via subscription revenues (none of which goes to the content owner) or more often through advertising, in many cases pushing questionable products– although legitimate advertisers are known to place ads on these sites as well, another problem the industry needs to tackle. Since piracy sites are run by criminal elements operating beyond the law, it is not surprising that it is a common occurrence for their customer base to be exposed to the risks of malware leading to hijacked email accounts, cyber-blackmail (freezing of accounts), and identity theft. Buyer beware.
The Coalition’s proposal is a straightforward and effective way to deal with this scourge, one that has already been successfully implemented by more than 20 countries. After careful review by regulatory bodies and/or the courts, it involves disabling consumer access to offshore content-theft sites by instituting blocks within a national jurisdiction. This is done by disabling access to the requested website through the DNS (Domain Name Servers) of all ISPs licensed to operate in a given country. In effect, it establishes a roadblock that returns a message of non-connection to the user, much like a “site not found” message where a website has been taken down. In Australia, where the system has been in place for a couple of years and is working well, the message tells the consumer why access has been blocked and encourages them to access legal content by referral to a number legitimate sources.
In all countries, access to the Internet is provided by nationally-regulated “telecom backbone providers”, or ISPs. These Internet Service Providers (ISPs) operate under conditions of licence, which require them to follow the law and guidelines issued by the regulator. In the case of the US, they are regulated by the FCC. In Canada it is the CRTC. FairPlay Canada’s proposal is to establish a transparent and representative adjudicative body, tentatively labelled the Independent Piracy Review Agency, to review the conduct of sites brought to its attention by stakeholders, and then to recommend to the CRTC (which has the legal authority to do so) to order ISPs in Canada to block access to sites that are “blatantly, overwhelmingly or structurally engaged in piracy”.
There would be an opportunity to rebut or refute the recommendation and the whole process, like any CRTC decision, would be subject to appeal to the Federal Court. On its face, this seems to me like a pretty reasonable proposal to combat the leakage of revenue to piracy sites operating outside Canada. This is all the more relevant at a time when the Minister for Canadian Heritage, Mme. Melanie Joly, has already released a framework, the Creative Canada Policy Framework, to protect and promote “made-in-Canada” content for distribution both nationally and globally.
Despite its proportionality and transparent process, the Coalition’s proposal was immediately jumped on (and dumped on) by copyright opponents, who masquerade under the cover of “internet freedom”. The Electronic Frontier Foundation (EFF)’s lap-dog in Canada, OpenMedia, immediately criticized the initiative as having a “negative and overreaching impact” on the Internet in Canada, leading to “legitimate content and speech being censored online violating our right to free expression and the principles of net neutrality”. Copyright critic Michael Geist leapt in with some hyperbole of his own, trying to equate the FairPlay Canada proposal with a failed effort by the previous Conservative government to introduce widespread powers of electronic surveillance for the stated purpose of combatting child pornography;
“Six years ago, then Public Safety Minister Vic Toews was challenged over his plans to introduce online surveillance legislation that experts feared would have significant harmful effects on privacy and the Internet. Mr. Toews infamously responded that critics “could either stand with us or with the child pornographers.” The bill and Mr. Toews’ comments sparked an immediate backlash, prompting the government to shelve the legislation less than two weeks after it was first introduced. This week, telecom giant Bell led a coalition of companies and associations called FairPlay Canada in seeking support for a wide-ranging website blocking plan that could have similarly harmful effects on the Internet.”
As Michael Geist notes, the Toews initiative was rightly criticized as government overreach and an invasion of privacy and was quickly withdrawn, but what the connection is between that episode and today’s proposal is, frankly, a mystery to me. No-one is suggesting any government snooping or knowledge over what individual consumers are doing in cyberspace. If the Coalition proposal is accepted, all that would happen is that a request by a consumer for access to a designated infringing website would be denied by the user’s ISP using an automatic process to disable the link. It is disingenuous and misleading to argue that there would be any surveillance or invasion of privacy or that there is any link between the FairPlay Canada proposal and the past misguided initiative of the Harper government.
The other canard seized on by opponents is to declare that the proposal is contrary to net neutrality, a policy position recently reaffirmed by the Canadian government. While one can debate the pros and cons of net neutrality, (and I am personally in the “pro” camp), it has nothing to do with blocking offshore content theft sites. Net neutrality essentially means that all legal content should be treated equally by ISPs and not favoured or disfavoured (i.e. speeded up or slowed down or even blocked) because the ISP wishes to privilege certain content over others. This could be done, for example, if an ISP also owned content that it wished to promote over the content of rivals, or was paid by certain content providers to boost their content over that of others by providing better (faster) access. Net neutrality is all about providing non-discriminatory access for lawful content, but has nothing to do with the distribution of unlawful content.
In short, net neutrality is a total red herring in this debate, designed to confuse the public.
The other argument dragged out by copyright opponents is to downplay the impact of piracy. Geist frequently cites the welcome increase in streaming revenues to the music industry (after decades of bleeding) or the fact that downloading of pirated music in Canada is slightly (33 percent vs 40 percent) below the global average for piracy as proof that there is no problem. Apart from the fact that most of the music industry is not, (at least for the moment), part of FairPlay Canada, this is like saying that piracy can’t be a problem in Canada because only one music consumer in three is cheating. In fact, the application to the CRTC submitted by the Coalition persuasively documents the deleterious effects of persistent piracy on the revenues of the Canadian content industry. I won’t repeat what it says (you can read it for yourself here), but suffice to say that the losses are in the order of hundreds of millions dollars annually, all of which translates into less production, less creativity and fewer jobs in Canada.
It will not be an easy process to convince the CRTC, and ultimately the government, that it is time to act and put in place a digital solution to the growing problem of digital piracy, even though it has been done successfully elsewhere. The opponents are mobilizing; already there are online petitions circulating criticizing the Coalition’s proposal as an invasion of individual expression, privacy and liberty etc. The CRTC will no doubt be flooded with cyberspace libertarian arguments. However this is not just about a few thousand vocal opponents who don’t believe in any restriction on the internet and don’t believe they should be required to pay for the content they consume. It is about preserving and building a healthy ecosystem that will support the continued creation and dissemination of Canadian (and global) content. Let’s hope that the CRTC will be able to weigh the benefits of that policy outcome against the collective hot air of vocal opponents. There is a lot hanging in the balance.
© Hugh Stephens 2018. All Rights Reserved.
Great blog, Hugh.
We’re in the early stages of trying to replicate in HK. Love hearing about Canada moving forward with this model.
Joe
Great piece. But what happens when the pirates are not only offshore websites, but government agencies? Ottawa Parliament Hill daily Blacklock’s Reporter @mindingottawa has applied for a judicial reference on the question of whether violation of a technological protection measure, like sharing passwords for the purpose of mass distribution, can be considered ‘fair dealing’. The Government of Canada in statements of defence says it is.
Contact: Scott Miller, MBM Law.