Bar Association tells committee notice-and-notice falls short

OTTAWA — The Canadian Bar Association told MPs Monday Parliament should introduce a new regime to deal with online piracy in the Copyright Act because the current notice-and-notice regime is ineffective. Steven Seiferling, executive officer of the bar association’s intellectual property law section, said at the House industry committee Canada’s notice-and-notice regime isn’t enough to deter infringement if it doesn't result in consequences. He said a copyright infringer could ignore the notice or spoof their location, making it hard for a rights-holder to stop the infringement, and a legal claim would only be useful if the copyright infringer lives in Canada and can be identified. And if the copyright holder wants to go beyond the notice system and identify or pursue an infringer, that process takes up time and resources, he argued. “If we’re going to absolve intermediaries of liability in Canada for infringement claims, the least we can do is adopt a notice-and-take-down system,” he said. “Given the borderless nature of the internet, many rights-holders are choosing the U.S. notice-and-takedown system where the infringing content is available in the U.S., since rights-holders can generally get the intermediary to take down the content,” the CBA's written submission said. Conservative MP Dan Albas pressed back, saying the committee had previously heard testimony that notice-and-takedown doesn’t work. “I've heard from creators who have had the system abused by rights holders and copyright trolls,” he said. “These systems are often automated and throw out take-down notices without an actual person to check to even see if the site includes infringing content. Why should Canada embrace such a framework?” Seiferling said neither system is perfect, but a takedown regime would be more effective in dealing with pirates located outside of Canada. “If you craft a notice-and-take-down system, you can put checks and balances in place that prevent that type of abuse. They've talked about the fair-use exceptions in the U.S. and a requirement for the intermediary to possibly consider those fair-use exceptions in the U.S. before taking down.” Meanwhile, copyright lawyer Barry Sookman, a partner with McCarthy Tétrault, told MPs that more than 40 countries have site-blocking regimes to prevent “blatant online theft,” and that Parliament shouldn’t leave it to the courts alone to eventually decide. “These remedies support functioning market places that are otherwise undermined by unauthorized pirate services.” But Ariel Katz, associate professor of law at University of Toronto, said such a regime might be effective in blocking sites, but people can work around it. He said it would not necessarily be effective in stopping piracy or transferring pirates into “effective paying customers.” "We don't have a piracy problem. We have a competition problem," he said, arguing that a concentrated media and telecom environment has priced some consumers out of the market -- referring back to a report he wrote for the Public Interest Advocacy Centre (PIAC) opposing FairPlay’s CRTC site-blocking proposal. Following on that point, Albas referenced an argument Valve Software CEO Gabe Newell had made, claiming the “fundamental misconception” about piracy is that it is “almost always a service problem and not a pricing problem,” and people will pay for conveniently available products. Sookman responded that Canada has Netflix and other desirable streaming services, but there’s still a “tremendous amount of piracy.” “Should legitimate operators be required to lower their prices to compete with those who are stealing their product at the price of zero? No.” Consumer advocacy groups warned the committee against site-blocking proposals, after the CRTC said it didn’t have the jurisdiction to decide to bring in such a regime, arguing the practice could lead to unintended consequences. But several big telecom industry players, including BCE Inc., told the committee they need new anti-piracy tools, such as court blocking orders, to deal with spate of online piracy problems, such as preloaded set-top boxes streaming pirated content. Sookman and Seiferling also defended the statutory five-year Copyright Act review Monday, after other experts criticized the perennial review. Sookman said Parliament can determine the scope of a given review. “This is one of these areas, given that copyright is such an important framework law, that having it reviewed and making sure it works is important.” Last week, University of Ottawa law professor Jeremy de Beer told the committee the frequent review disincentives politicians from drafting “technologically neutral principles” and “it just gets us on this constant hamster wheel of lobbying.” Copyright lawyer Howard Knopf said the five-year review should “stop” because constantly reviewing it is a “waste of time,” although it’s “lucrative for lobbyists and lawyers.” The committee will hear from the copyright board and department officials from Industry and Heritage on Wednesday. — With reporting by Kyle Duggan at kduggan@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Bar Association tells committee notice-and-notice falls short

News | December 4, 2018

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Bar Association tells committee notice-and-notice falls short

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