Government of Canada | Gouvernement du Canada
Symbol of the Government of Canada

Archived - Bell, Rogers, Shaw and TELUS

Archived Content

Information identified as archived on the Web is for reference, research or recordkeeping purposes. It has not been altered or updated after the date of archiving. Web pages that are archived on the Web are not subject to the Government of Canada Web Standards. As per the Communications Policy of the Government of Canada, you can request alternate formats on the "Contact Us" page.

Disclaimer

All submissions have been posted in the official language in which they were provided. All identifying information has been removed except the name under which the documents were submitted.


Bell Canada, Rogers Communications Inc., TELUS Communications Company and Shaw Communications Inc. (the "Communications Companies") are diversified Canadian communications and media companies engaged in a variety of businesses, including high-speed Internet access, wireless, cable and satellite television, and broadcasting. We welcome this opportunity to add our comments to these important copyright consultations.

Also, Bell, Rogers and TELUS are members of the Business Coalition for Balanced Copyright (BCBC) and endorse BCBC's comments. In this submission, the Communications Companies focus on some specific issues and concerns about copyright reform that directly impact our operations. The following comments build on the past various submissions we have made to the Departments of Industry and Canadian Heritage regarding these important issues.

1. Introduction

We support the government's intention to update the Copyright Act to accommodate the realities of the digital age while maintaining a balance between the protection of copyright and consumers' rights to access and use copyright products. In our view, some of the ways that we can achieve this balance is to

  1. expand the fair dealing regime in Canada to legitimize common consumer fair dealing practices such as platform-shifting and time-shifting,
  2. minimize the duplication of rights and instead ensure that market-based solutions are primarily relied upon to respond to innovation and creativity, and
  3. respect the roles of the various parties so as to avoid requiring intermediaries to act extra-judicially to enforce the rights of others.

In our view, although Bill C-61 introduced in 2008 may have been an improvement in some areas over the previous copyright amendment bill (Bill C-60 introduced in 2005), it was nevertheless problematic in several respects. Had Bill C-61 been enacted, it would have created or perpetuated difficulties in legal interpretation and uncertainty that would have adversely affected innovation and the digital marketplace for copyright products. The next copyright amendment bill would be much improved over Bill C-61 if it addressed a few key issues which we believe are necessary to modernize copyright law so that it can withstand the test of time and promote innovation and creativity.

Given that this consultation precedes what will be the third comprehensive copyright amendment bill in recent years, the most salient terms of reference regarding potential amendments remain the text of Bills C-60 and C-61, and hence they are referred to from time to time below.

2. How existing copyright law should be modernized?

The Communications Companies are users, owners, and licensees of copyright. We are therefore sensitive to the concerns surrounding copyright infringement and we share some of these concerns with copyright owners, even if we cannot always agree with their proposals for addressing their concerns.

In our view, while proposals for Copyright Act amendments have to protect creative works, maintain creative incentives, and provide for reasonable compensation for rights-holders, the amendments must also enable reasonable access to information and entertainment on both commercial and non-commercial terms. There must be incentives for innovation and creativity in the way copyright products are made available through new processes and methods. We recognize there can be benefits from reasonable technical measures to control access to and copying of works, but protections for these measures must be balanced by fair dealing exemptions that recognize and permit common private fair dealing practices such as time-shifting and making back-up copies. The government must take care that technical measures do not override established fair dealing rights and practices such as private research and study and access to works in the public domain.

3. The Test of Time

The current Copyright Act was written in 1921 and proclaimed into law in 1924. With the exception of periodic updating to embrace changing technologies and to comply with a few international treaties, there have been no comprehensive revisions of the Act in over eighty years. The original legislation has stood the test of time because it has proven capable of being adapted to changes. Some of the amendments that followed, however, have resulted in the overlapping or "piling on" of rights with no commensurate value, while others have been less able to adapt to changes in the marketplace. Future amendments to the Act must be artfully crafted to retain the mutability that was built into the original legislation. Care must therefore be taken to ensure that, in addressing new uses and new technological developments, the Act does not result in further overlapping and duplicative rights that impede the efficient operation of the marketplace and create significant disincentives to innovation and dissemination of information.

There was a time not long ago when information and entertainment were limited to newspapers, books, radio, records, films and TV programs. Canadians still receive information in these media, but more and more, these and completely new forms of information and entertainment are accessed in electronic form, on an Internet or mobile platform, and most importantly, at the time and place of the user's choice as opposed to only in the particular form it was delivered and as it became available. Thanks to the nearly ubiquitous adoption of the personal computer, the ability to copy, access and store content at will is now at almost everyone's fingertips with the result that choices available for consumers and rights owners alike are wider and more convenient than ever. Broadband networks and ever more sophisticated wireless devices have enabled ever more choice and convenience for consumers and content distributors. High-speed networks have made online distribution businesses such as iTunes and Hulu, not to mention social networking sites like YouTube and Facebook, immensely popular with Canadians of all ages and profitable commercial enterprises. The future business models are endless.

The transition to a digital marketplace has been an evolutionary process and we have been living with incremental changes for some time. New business opportunities have been embraced without adding new rights, additional copyright protection or mandatory collective licensing. There are lessons to be learned from the past, one of which is to keep the law flexible enough to be adaptable to changing technology that would create opportunities for new markets for goods and services, instead of solely being concerned about old markets.

4. Fair dealing and the Evolution of Time-shifting — Network-based Personal Video Recorder (NPVR) services

Future Copyright Act amendments should permit technological flexibility, something that Bill C-61 failed to do. Bill C-61 was an attempt to micromanage the marketplace and permitted only some very specific technical innovations but strangely prohibited others such as network-based personal video recorder (NPVR) services. Amendments to the Act regarding fair dealing, or specifically regarding time-shifting as a matter of fair dealing, should offer Canadian consumers more options when it comes to scheduling their TV viewing or music listening, not less.

Time-shifting is considered a "fair use" of copyright works in the United States 1 and has twice been confirmed to be legal by the courts, yet despite the fact that VCR and PVR-based time-shifting is a common practice in the homes of millions of law-abiding Canadians, the legal status of time-shifting in Canada has not been clearly established. Despite claims that the VCR, and later the PVR, would cause huge losses for film studios and television networks, these innovative devices that made TV time-shifting possible have in fact created new opportunities, rather than threatening the viability of content production industries 2. The United States Supreme Court effectively legalized NPVR services in the U.S. when it denied the Cartoon Network and other copyright owners' appeal of the ruling of the United States District Court of Appeals for Washington, D.C. in the "Cablevision" case 3. NPVR services are a time-shifting technology with many consumer benefits beyond those of their ubiquitous predecessors, the VCR and the PVR. Bill C-61 would have effectively prohibited these benefits in Canada by excluding them from the proposed personal time-shifting right. In our view, the government should be very wary of prohibiting the use by Canadians of a consumer-empowering and environmentally efficient technology that is legal south of the border, especially since Canada and the U.S. are part of the same North American entertainment and consumer electronics markets. Further, we are concerned that the potential advantages of NPVR services for rights-holders — such as a heightened ability to control the making of copies of recordings — have not been fully considered.

If NPVRs are prohibited in Canada but legal in the U.S., not only would our law be out of step with the most influential consumer electronics and entertainment market in our hemisphere, but there could be a "snow balling" effect that could see Canadians forego the benefits of future innovations that could flow from NPVR technology and similar "cloud computing" technologies. In the short term, prohibiting new technology such as NPVR could cause more Canadians to abandon the regulated broadcasting system in order to access television content from the Internet (either legally or illegally). That would be an unfortunate result for audiovisual rights-holders and television distributors alike.

5. Intermediary liability

In 1988, Parliament made it clear in amendments to the Copyright Act that persons providing the means of telecommunication as intermediaries are not parties to an infringing communication made by another party. There have been a number of subsequent amendments to the Act since 1988, but none of them has changed this intermediary exemption from liability. Even Bill C-61 maintained the principle that ISPs should not face copyright liabilities when acting as intermediaries. This principle in turn is consistent with the ruling of the Supreme Court of Canada in the SOCAN Tariff 22 decision, in which Mr. Justice Binnie stated that this "is not a loophole but an important element of the balance struck by the statutory copyright scheme" 4. The Supreme Court went further in that decision specifically to also exempt the ISP practice of caching from liability under the Act as it was seen to be a necessary means to deliver a faster and more economic service. The Supreme Court's decision confirms the public interest in encouraging intermediaries to expand and improve their operations without the threat of copyright infringement. In the next copyright amendment bill, intermediaries including ISPs should continue to be exempt from liability for infringements of copyright and any violations under the Act as a result of transmissions that occur over their networks. To implement the WIPO Internet Treaties will require that we add the legal enforcement of effective technical protection measures (TPMs) into our legislative framework which can be done via the Copyright Act. Legal enforcement of TPMs will involve sanctions for disseminating devices and processes for circumventing technical protection measures. TPMs are neither "works" nor "other subject matter" as these are defined in the Act. The exemption in s. 2.4(1)(b) for intermediaries, such as ISPs, that provide the means for telecommunication applies only to works of copyright and other subject matter but not necessarily to proposed new provisions regarding TPMs in Bill C-61. Unless s. 2.4(1)(b) is amended to extend the intermediaries' exemption to the provisions regarding TPMs, it may be unclear whether ISPs could be liable for their subscribers' transmission of software used to circumvent TPMs.

In addition, some stakeholders demand that ISPs must do more to help combat peer-to-peer file-sharing. We believe these demands are disingenuous because ISPs have been cooperating with copyright owners to address on-line file sharing and other alleged infringing activities on the Internet. For more than eight years, most of Canada's large ISPs have voluntarily, and at their own expense, forwarded millions of copyright infringement notices to subscribers who are alleged to have infringed copyright. The major Hollywood film studios, international record companies, major software publishers and other rights owners have been active participants in the Canadian voluntary "notice and notice" program. Some might measure the value of the notice and notice program by the fact that these same rights owners have very rarely if at all gone the next step of enforcing their statutory rights in Canadian courts against file sharers 5.

Canadian ISPs have been the first to respond to the P2P file-sharing copyright infringement complaints from the multi-national record companies, Hollywood film studios and software industry with a completely voluntary notice and notice scheme. A notice and notice response to alleged P2P copyright infringement is increasingly being recognized in other countries as an effective response 6. U.S. courts have said that the DMCA "notice and takedown" provisions are not applicable to P2P file sharing. In response, some of the large US networks and Hollywood studios have turned to private agreements with ISPs to pass on notices to their subscribers 7. Notice and notice programs are also being explored elsewhere as a viable alternative to notice and takedown and other legal action. Studies have shown that notice and notice has been found to be effective in a high percentage of cases 8. As we have had a functioning voluntary notice and notice program for over eight years, it makes little sense to embrace notice and takedown or adopt some kind of "three strikes and you're cut off'' rule, a proposal that has been rejected by the European Parliament and in almost all countries where there have been attempts to introduce such a law.

While we prefer to maintain notice and notice as a voluntary regime, if it is considered necessary to formalize it by bringing it into the Copyright Act as a mandatory scheme, that should be done by adopting the current voluntary program without additional obligations. In addition, if a mandatory regime is considered appropriate, it needs to be clearly stated in the Copyright Act that ISPs are to be compensated for both capital and operating expenditures resulting from the imposition of a mandatory scheme, which is for the exclusive benefit of rights holders.

The government should continue to resist the calls of some rights-holders to make ISPs responsible for disciplining customers for alleged copyright infringement without proper judicial oversight. Embracing a "three strikes rule" would almost certainly be vulnerable to legal challenges under both constitutional and human rights law. A "graduated response" or "three strikes" policy, proposed as a way to discipline individuals for alleged copyright infringement by way of peer-to-peer file sharing, failed in many jurisdictions around the world this past year. Under proposed "three strikes" policies, ISPs were to be required to first pass on notices of alleged infringement, then, upon receipt of subsequent notices from the same rights-holder relating to the same subscriber, initially suspend access to customers who do not cease the complained-of activity, and finally disconnect non-compliant customers completely.

In France, where such a "three strikes" law was initially passed by the Legislative Assembly, the Constitutional Council subsequently ruled that only a judge could bar people from the Internet because, as the court reasoned, access to online services is a human right 9. This result was consistent with an earlier European Commission statement that stressed the necessity of proper judicial authorization before a person's Internet access can be cut off 10.

We further note that in Canada, rights holders already have the ability to seek wide injunctive relief, including the suspension of internet service for repeat infringers, under the existing provisions of the Act. Therefore, no amendments are necessary to incorporate these types of judicially-authorized sanctions into Canadian law.

top of page

6. Signal Theft

Over two billion dollars is lost to signal theft each year. In response, broadcasters have suggested at the international level that an expanded broadcast signal right is needed to take legal action against individuals and companies that are stealing broadcast signals. That suggestion has been turned down at the international level. Rather, what needs to be introduced is a prohibition on signal theft that does not require a new expanded signal right or retransmission right in a broadcast signal. What is needed is a right of prohibition to curtail and stop signal theft. The Canadian delegation has taken a position in discussions over a new international broadcast treaty at the WIPO Standing Committee on Copyright and Related Rights against an expanded signal right that would interfere with the existing Canadian retransmission regime.

While well intentioned at the level of signal piracy, the broadcasters' actual proposal would result in a negative out-flow of royalties from Canada as we are required to observe national treatment obligations under the treaties we have signed. Expanded signal rights for broadcasters are not required to implement the WIPO Internet Treaties. As there is no equivalent broadcast signal right in the U.S., it would mean that Canadians would be required to pay U.S. broadcast networks under NAFTA and FTA provisions millions of dollars of additional royalties if a signal right were added to the Canadian Copyright Act.

7. No "Digital Delivery Tax"

Canadians today are required to pay additional copyright fees — a kind of "digital delivery tax" — for accessing and then downloading copyright music products online such as ringtones and full track music downloads from legitimate online services. However, this "tax" is not levied on the same copyright products when they are delivered offline (e.g., when purchased on a CD from Wal-Mart or ordered from Amazon). Downloading music or ringtones to be used on an iPod or a mobile phone are examples of digital transactions to which an additional layer of copyright payments and regulation could stifle innovation in new digital delivery technologies in Canada. This digital delivery tax is increasing costs to legitimate online businesses and to the consumer, and may even contribute to consumer use of P2P file sharing for accessing online copyright products.

As a result of holding that a personal, one-to-one Internet download is a communication "to the public," the Federal Court of Appeal in its decision in the SOCAN Tariff 24 (or ringtones) judicial review opened the door for copyright collectives to propose tariffs for, essentially, the act of digital delivery, resulting in an additional payment to rights-holders above and beyond those already paid related to the reproduction of the work, even though the work is not "performed" or communicated to the "public" at all in the sense they were intended to capture 11. The fact is that the simple act of online delivery does not add any value in and of itself, and would almost certainly not be the subject of a negotiated royalty were its value left to commercial negotiation. Instead, under the Federal Court of Appeal's ringtones decision, the Copyright Board is given the power to approve tariffs for the online delivery of any kind of work, and is obligated to certify tariffs for musical works. It should go without saying that these tariffs do not apply when the same work is purchased in a store such as Walmart or even online at Amazon, but delivered offline. It is common sense that an Internet download is no more a communication to the public than is an in-store purchase, yet as a consequence of the ringtones decision, it is treated as such and a unique additional copyright fee is added on with no commensurate value but with increased cost to the consumer. This is not only inequitable, illogical and regressive, but incompatible with public policies that encourage electronic commerce and the use of information technologies. The problem this creates goes far beyond ringtones and music downloads — the principle applies to all copyright works.

It is also important that Canadian law not be at odds with U.S. law on this point, in light of the fact that American courts have already ruled that a download of a copyright work is not subject to the U.S. equivalent of Canada's communication to the public by telecommunication right 12.

It is important to consider that this "digital delivery tax" has been wrongly identified with the WIPO Internet Treaties' concept of "making available," which was intended to bridge the gap where existing rights were not considered sufficient to enable rights-holders to protect their works from unauthorized distribution on the Internet. The WIPO Internet Treaties, however, were drafted in such a way as to allow for a great deal of flexibility in the implementation of a making available right in national laws, including basing the right on existing rights of reproduction or distribution, the latter course being adopted in the U.S. The U.S. has implemented and ratified the WIPO Internet Treaties in a way that would not impose a digital delivery tax on copyrighted works sold and delivered over the Internet. Therefore, to the extent necessary to meet WIPO obligations, amendments to the Copyright Act should provide protection for the legitimate online distribution of copyright works while not adding legal uncertainty and a new layer of rights, payments and regulation to an innovative and rapidly evolving marketplace.

Unfortunately, Bill C-61 would have unnecessarily expanded the existing right of communication to the public by telecommunication, resulting in a duplication of protection for rights-holders and, most troubling, the forced regulation by the Copyright Board of terms of commercial agreements that would otherwise not be within its jurisdiction to control. Such proposed amendments would have:

  1. stifled innovation in new digital delivery technologies in Canada,
  2. added an additional layer of rights payments where fair compensation is already paid (for example, by unfairly adding a "digital delivery tax" to the private online delivery of purchased music, films, games, software and other copyright products), and
  3. created an imbalance with additional royalties flowing to foreign jurisdictions, including those that do not consider downloads subject to their equivalent of Canada's communication to the public by telecommunication right.

The resulting increased costs and legal uncertainty would also have discouraged the development of legitimate digital markets in Canada and, ironically, even encouraged some consumers to rely on illegal sources of content, from which rights-holders receive no compensation at all.

Amendments to the Copyright Act should clearly state that point-to-point communication of a copyrighted work should not lead to additional copyright payments under a new "making available" right and should be clearly excluded from the existing communication to the public right. The design of a new "making available right" in the Copyright Act presents the opportunity to implement the WIPO Internet Treaties and correct the result of the ringtones case at the same time. In our view, the Copyright Act should clearly distinguish between communications that are truly to the public and those that are merely the private point-to-point delivery of copyright products online. There should be no duplication of regulation and payments for the same product when delivered online that are not required when it is sold offline in a store. We believe this approach would result in the least disruption to the current Act, legislative history and judicial precedents.

8. A Levy on P2P File sharing

The Songwriters Association of Canada (SAC) and a few others have proposed a levy that they consider to be a complete answer to P2P file-sharing of music. We don't agree, for a number of reasons. A levy such as that proposed by the SAC would be inequitable because it requires all Internet users to pay for copyrighted works such as music even if they never download music using P2P protocols. It would also unfairly exempt those who get their access through non-commercial means (e.g., universities or libraries), unless there is a proposed to tax them too. Such a regime would almost certainly be challenged on a number of legal grounds, including international trade, since foreign rights-holders would not likely countenance the wholesale stealing of their works by way of file sharing. No matter how carefully the levy might be designed, it could not possibly compensate every rights-holder for every right, and thus would constantly be open to attack and legal challenge. Even more telling is the fact that rights owners themselves are greatly divided about the wisdom of this proposal with the recording industry as a staunch opposer.

Administering a levy is also a very costly process. The songwriters suggest that this is the job of the ISPs, who would have to pass on these costs to customers or absorb these costs out of the levy proceeds. Costs for online customers would only escalate if additional levies for films, software and online books were to follow. Additionally, international obligations would require payment to foreign artists even if they did not have a similar levy that would obligate them to make reciprocal payments to Canadian artists.

Levies of this kind should only be considered in the case of true market failure where legitimate commercial enterprises cannot satisfy consumers. We don't believe that the marketplace for digital copies on the Internet is so broken that it requires a last-ditch solution such as a broad-based levy. The songwriters' levy, for example, would decimate the recording industry because there would be little incentive for consumers to actually purchase music from legitimate online services such as iTunes or its Canadian competitors such as Puretracks which would negatively impact on the ability for the record companies to invest in new Canadian artists and so on — everyone suffers.

9. Private Copying

The private copying levy has engendered considerable debate since its inception in 1997. The original intent of the private copy levy was to compensate rights holders of recorded music for private copies being made by consumers for their own personal use onto media that was not really capable of being protected through analog technology. The purpose of a private copy levy is now growing less apparent as legitimate music services exist in Canada and effective technological protection measures are being deployed as necessary by content owners. Copying levies of this kind are solutions that were conceived for a different era 13. Some (though not all) rights-holders are now trying to convince legislators that it is appropriate to extend the private copying levy to new forms of recording media and consumer electronics devices, but taking this step would have several unwelcome results.

The first is that it is clear that rights-holders are anxious to entice consumers to access copyright products from legal sources where creators will be compensated. When an iPod owner purchases music from iTunes, he or she has the reasonable expectation that they will be able to access that music on their iPod listening devices at no additional cost as they have already paid for their copy of the song. To do so, however, may also require an intervening copy of the music to be made on a computer and while it is possible to access music from a computer, it is not the typical practice. The Canadian Private Copying Collective is suggesting that an additional layer of payment, as a percentage of the retail price in the form of a levy, is required to access the music from the portable player. As in the case of the digital tax for downloads referenced above, an additional layer of regulation and fee collection on portable players or other devices without added value for the consumer will most certainly encourage some music consumers to access music not from a legitimate enterprise but rather through file sharing, to the detriment of rights-holders. No levy can fully compensate rights holders if it perpetuates a culture of free.

Another problem with a levy on devices is that its proponents would see it being extended beyond the personal MP3 player or iPod to other devices that could be used to access, store and play back music, e.g. personal computers, cell phones, universal storage devices, etc. If we take cell phones as an example, many of the new smart phones are capable of a multitude of new uses including music storage and playback. It is up to the individual user, however, to decide whether or not they want to use those music storage features. It is inequitable to expect all purchasers of the new smart phones to pay an additional copyright fee or a levy for a function that they may never use or that they may only minimally use as compared to various functions of the device, including its primary function as a phone. We are also concerned that extending the blank media levy to network-connected devices such as smart phones or netbooks would stifle innovation in the wireless industry and increase device prices. Such price increases could potentially put innovative wireless devices out of the reach of many consumers. A regressive tax like this could not come at a worse time, as Canada's wireless carriers are rolling out high-bandwidth, next-generation networks that will support significantly increased data functionality and new opportunities for the legal distribution of licensed content.

10. Education

Over the course of these copyright consultations, as well as the past several years, we have heard very little about efforts to educate Canadians about copyright. It is actually quite curious when for years now education has been part of numerous policy initiatives as it is seen as a key component of any tool kit approach, along with targeted legislative changes, enforcement, cooperation and industry best practices. Education was a key component of the Spam Task Force efforts in 2004–2005. Copyright is no different.

Canadians generally, and young Canadians in particular, do not want to be told they are thieves. They are open, however, to better understanding and hopefully respecting what it means to live in a society where citizens create and try to make a living from their creations, so that others can benefit from those creations.

There are many opportunities to educate Canadians. However, the Media Awareness Network is uniquely placed given their resources are licensed in just about every school in the country. With the assistance of partners, they believe they can add on to these existing resources the message about copyright developed and delivered in a way that students get.

top of page

11. Conclusion

The next round of copyright amendments must balance the reasonable needs of all the various stakeholders — rights holders, consumers, users and business — as it is the only way to ensure a vibrant and innovative community for creators and users alike.


1Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) is a United States Supreme Court case that established that the making of individual copies of complete television shows for purposes of time-shifting does not constitute copyright infringement, but rather constitutes fair use. (Return to text.)

2Motion Picture Association of America (MPAA) President Jack Valenti made the following statement to a U.S. Congressional panel in 1982:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Jack Valenti

Yet the reality is that home video viewing, beginning with the VCR and later the DVD player, ultimately came to be the mainstay of movie studio revenues throughout the 1980s, 1990s and into the 2000s. British copyright commentator Tom Watson recently made these insightful observations on a similar phenomenon that occurred much earlier:

In 1906, composer John Phillip Sousa testified before the US Congress that the technological advance of his day would not only "ruin the artistic development of music" but also cause the vocal chord "to be eliminated by a process of evolution". His fear? That families would shun the singing of songs from sheet music in favour of listening to music on player pianos — the direct antecedents of the record player. It's interesting to speculate what the creative industries would look like had legislators listened then. I suspect that the CEOs of the world's four major record labels would agree that it's a good thing they didn't.

Tom Watson, "Filesharing: Why the government should proceed with caution and what you can do to influence the debate", 16 August 2009

(Return to text.)

3The Cartoon Network LP, LLP v. CSC Holdings, Inc., United States Court of Appeals for the Second Circuit, 4 August 2008. (Return to text.)

4Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, [2004] 2 S.C.R. 427. Mr. Justice Binnie also wrote:

I conclude that the Copyright Act, as a matter of legislative policy established by Parliament, does not impose liability for infringement on intermediaries who supply software and hardware to facilitate use of the Internet. The attributes of such a "conduit", as found by the Board, include a lack of actual knowledge of the infringing contents, and the impracticality (both technical and economic) of monitoring the vast amount of material moving through the Internet, which is prodigious.

Mr. Justice Binnie

(Return to text.)

5"CRIA President Henderson explains that while the Court found that CRIA would require additional evidence before proceeding with the 29 actions filed to date, "The court has clearly articulated the evidentiary standards that we need to meet and we are satisfied that we can meet those standards in future applications. Large-scale music swappers should know that they can and will be held accountable." "The decision gives us the blueprint we need to proceed," adds Henderson. "We welcome this clarity. With this in hand, we will be able to act in the interest of artists and those who invest so much time and money in their careers." 19 May 2005 (News: Canadian recording industry welcomes music piracy decision). By providing a roadmap setting out the evidentiary requirements needed before proceeding against alleged file sharers, the court sets a precedent that large scale music swappers will be held accountable for their actions. With this decision in hand, CRIA will be better equipped to act in the interest of the artist knowing that their work will not be threatened. Others in the music industry welcomed the decision since the good news will only promote legitimate online music services and the artists they support." ("Canadian recording industry welcomes music piracy decision", McCarthy Tétrault, Co-Counsel: Technology Law Quarterly, Volume 1, Issue 2 (April — June 2005). (Return to text.)

6

70% of illegal file sharers say they would stop if they receive a warning note from their ISP

Entertainment Media Research, Wiggins LLP

(Return to text.)

7Recording Industry Association of America v. Verizon Internet Services, 351 F.3d 1229 (D.D.C. 2003). Four More ISPs Join Music Piracy Letter Scheme, Extended To Film, 24 July 2008; Comcast, Cox cooperating with RIAA in anti-piracy campaign, 25 March 2009; ISPs try to explain RIAA anti-piracy relationship, 26 March 2009. (Return to text.)

82008 Digital Britain Entertainment Survey. (Return to text.)

9French anti-piracy drive ruled illegal, 11 June 2009. (Return to text.)

10European Parliament smacks down France on three strikes law, 6 May 2009; (European Parliament votes against the 3 strikes again, 6 May 2009. (Return to text.)

11Canadian Wireless Telecommunications Association v. Society of Composers, Authors and Music Publishers of Canada (F.C.A.), 2008 FCA 6, [2008] 3 F.C.R. 539. A ringtone is a digital audio file that may be stored in the memory of a cell phone and programmed to signal an incoming call. A ringtone may be any kind of sound, including music. A musical ringtone may be synthesized music, either monophonic (one note at a time) or polyphonic (up to sixteen notes at a time). A ringtone may also be an excerpt or clip taken from an original sound recording of a musical work. (Return to text.)

12United States v. ASCAP, 485 F. Supp. 2d 438 (S.D.N.Y. 2007). Just as important, the Cablevision decision confirmed (for the second time) that a point-to-point transmission of a copyright work is not a public performance for the purposes of the U.S. equivalent of the communication to the public right in Canada's Copyright Act (The Cartoon Network LP, LLP v. CSC Holdings, Inc., see note 3 above). (Return to text.)

13Testimony of Mr. G. Ken Thompson (Vice-President and General Counsel, Canadian Recording Industry Association) before the Standing Committee on Canadian Heritage considering Bill C-32 on 22 October 1996. (Return to text.)