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;
“The Commission acknowledges that there is evidence that copyright piracy results in harm to the Canadian broadcasting system and to the economy in general.”
The decision continued;
“However, there are other avenues to examine the means of minimizing or addressing the impact of copyright piracy, including the ongoing parliamentary review of the Copyright Act and the expert panel review of the Telecommunications Act and the Broadcasting Act.”
In other words, as prominent IP lawyer Barry Sookman put it, the CRTC “punted” the issue to Parliament. This will be the next forum for dealing with this issue and no doubt the same line up of supporters and opponents will engage in the debate on whether and how to block offshore pirate websites.
Recall that the FairPlay Coalition was established back in January of this year with several major unions, the public broadcaster CBC, 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 coming together to petition the CRTC to take action on the growing problem of offshore streaming piracy. It has subsequently grown to more than 30 members with all national telecom providers now supporting the proposal (the lone holdout had been TELUS which filed a letter of support at the end of March). The proposal was to establish a transparent and representative adjudicative body, to be called 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 the Coalition claimed had the legal authority) to order ISPs in Canada to block access to sites that were “blatantly, overwhelmingly or structurally engaged in piracy”. This would be similar to regimes that disable access to content-theft offshore websites that have been successfully established in a number of countries around the world, including notably the U.K. and Australia. As I noted at the time, the bringing together of such a disparate group of Canadian cultural industry stakeholders in support of a common goal like combatting online streaming piracy was a case of “hanging together or hanging separately”.
After FairPlay Canada filed its case, the CRTC received over 150,000 interventions. Over 140,000 of these (all opposing the proposal) were generated by just three civil society organizations, with Open Media being the most prolific having spammed the CRTC with its online petition 83,000 times. This is similar to Open Media’s tactics with respect to the updating of copyright legislation in Canada and the terms of the IP chapter of the new NAFTA agreement (now called the USMCA). In fact, Open Media is now taking credit for the CRTC decision to deny the application bragging that;
“This is a big win for the open Internet, and a true demonstration of democracy in action…..The campaign against website blocking, led by OpenMedia, Sum of Us, and LeadNow, included a national Day of Action on February 28, which saw over 50,000 submissions into the CRTC’s consultation page, tens of thousands of tweets sent to FairPlay coalition members, and significant media coverage.”
As David Lowery of the Trichordist has ably documented and demonstrated, Open Media allows anyone, Canadian resident or not, to pose as a resident of Canada (by simply entering a postal code) and then to send repeated submissions to Parliament, MPs, the CRTC or whoever their target audience may be by a simple click of a mouse, using the browser back-button to resend…and resend….and resend.
Open Media’s “big win” was actually a jurisdictional decision where the CRTC did not consider the merits of the FairPlay Canada application (because it determined that it did not have jurisdiction) while acknowledging the damage that piracy is causing to the Canadian broadcasting system and economy.
Be that as it may, don’t expect facts and logic to get in the way of Open Media’s ongoing campaign against disabling pirate websites, including the CRTC’s suggestion that site blocking be dealt with during the review of the Copyright Act. These masters of spamming and astroturfing don’t really rely on facts but instead prefer to “frame” issues to substitute “morals, values and identity” for facts, logic and reason. That means using hyperbole, scare-mongering and misleading information instead of arguing the issues on their merits.
What will happen now? Amending legislation and using the courts to achieve the goal of blocking pirate sites was always one alternative. In its response to interventions on its original application, FairPlay examined the possibility of using legal alternatives and concluded that under current Canadian law it would take over two years (750 days) and cost around $260,000 to obtain a single blocking order! That is clearly ridiculous, and if the CRTC won’t assert its jurisdiction and permit the establishment of a piracy review agency (which would have allowed an effective, transparent and streamlined decision-making process), then legislative amendments are going to be required (as happened in Australia) to make the court route a more realistic alternative.
In testimony to the Parliamentary committee that is taking evidence in preparation for possible revisions to the Copyright Act, three of Canada’s major ISPs (Bell, Rogers and Shaw) have all called for new measures to combat streaming piracy and facilitate pirate site blocking. Proposals range from amending the Copyright Act’s civil remedies to clarify the Federal Court’s authority to block access to websites found to be infringing, to making it a criminal violation for a commercial operation to profit from content theft and to provide injunctive relief against all intermediaries that form part of the online infrastructure distributing stolen content by recommending a new provision specifically empowering courts to order intermediaries to be part of the solution rather than part of the problem. This would apply to intermediaries such as ISPs, web hosts, domain name registrars, search engines, payment processors, and advertising networks. It would mean in practice that a new section of the Copyright Act would allow a court to issue an order directly to, for example, a web host to take down an identified dedicated piracy site, a search engine to delist it, a payment processor to stop collecting money for it, or a registrar to revoke its domain name.
It is clear that if the CRTC doesn’t want to handle this hot potato, Parliament and the courts will have to do it. Will this stop the criticisms of the anti-copyright crowd, including the prolific Michael Geist who has churned out more than 25 blogs on the subject of why the FairPlay Canada proposal is a bad idea? I doubt it, but among his criticisms is the fact that the proposed independent agency to identify pirate sites was outside the court system. According to Dr. Geist;
“One of the most obvious problems – indeed one that is fatal – is the absence of court orders for website blocking”
Maybe he will get his wish, and the system will be implemented by court order. If that happens, as I noted in an earlier blog, look for a new range of anti-copyright protection arguments to be invented.
At the end of this long road, hopefully Canada will join the twenty or so other economically and culturally advanced countries that have already implemented site-blocking solutions in one form or another. That would indeed be a “big win” for the content industries in Canada, for Canadian creators and for Canada’s economy.
© Hugh Stephens 2018. All Rights Reserved.