ARCHIVED — Canadian Association of Internet Providers (CAIP)

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

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Submissions from Canadian Association of Internet Providers (CAIP) received on September 18, 2001 via e-mail

Subject: Consultation Paper on the application of the Copyright Act's Compulsory Retransmission Licence to the Internet

Submission re Paper on Digital Copyright Issues PDF Version
Submission re Paper on Retransmission License Issues PDF Version

Consultation Paper on Digital Copyright Issues

These are the written comments of the Canadian Association of Internet Providers* ("CAIP") with respect to the above-noted Consultation Paper, as issued by Industry Canada and the Department of Canadian Heritage ("the Departments") on June 22, 2001.

Introduction

CAIP is the only non-profit association representing all sectors of the Internet provider industry. Our membership is made up of a broad and diverse group of Canadian Internet Service Providers (ISPs), including large, medium and small independent access providers; incumbent and competitive telephone companies; backbone providers; wireless providers and web hosters. CAIP's members currently provide approximately 80% of the Internet connections to Canadian homes, schools and businesses.

The association's larger members include Aliant, AOL Canada, AT&T Canada, Bell Canada, Group Telecom, IBM, Sprint Canada, Telus and WorldCom Canada. CAIP's Mission is to foster the growth of a healthy and competitive Internet service industry through collective and cooperative action on Canadian and international Internet issues. To this end, we represent our member companies before the federal government and such public authorities as the CRTC, the Copyright Board and the Competition Bureau as well as the federal courts. We actively participate in proceedings, meetings and debates relating to Internet self-regulation, high-speed access, ISP liability, Internet security and law enforcement, e-commerce policy and copyright.

CAIP was an active participant in the Copyright Board's 1998 hearing respecting SOCAN's Tariff 22, and is currently a respondent in SOCAN's appeal of that decision to the Federal Court of Appeal, to be heard September 25 and 26, 2001.

In these comments, we will focus exclusively on Section 4.4 of the Consultation Paper on Digital Copyright Issues ("the Consultation Paper"), entitled "Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright".

Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright

The Consultation Paper proposal for addressing the issue of ISP copyright liability contains 3 elements:

1. ISPs would not be liable for copyright infringements when third parties use their facilities for disseminating copyright-protected material, nor would caching for the purposes of facilitating a communication give rise to liability;
2. A notice and take-down regime for activities amenable to such a regime (i.e. hosting and caching but not purely transmission related activities); and
3. A "safe harbour" provision for ISPs, protecting them from liability to third parties when acting in compliance with the notice and take-down regime.

CAIP fully supports the first element above, namely a legislative recognition that ISPs are not liable for copyright infringement when acting as mere conduits of other people's content or when caching for the purpose of facilitating a communication.

We suggest an alternative approach, however, to the common understanding of the notice and take-down proposal in the second element, and further suggest that, with the adoption of our alternative approach, there would be no need to legislate a "safe harbour" for ISPs, as proposed in the third element.

We will comment on each of the elements in turn.

Element #1: A Common Carrier Exemption

CAIP supports the proposal to exempt ISPs from liability for copyright infringement when their facilities are used by a third party to communicate copyright works to the public or to reproduce such works, and when caching takes place.

Paragraph 2.4(1)(b) of the Copyright Act ("the Act") provides that " a person whose only act in respect of the communication of a work...to the public consists of providing the means of telecommunication necessary to so communicate the work... does not communicate the work to the public." This provision is commonly referred to as the "common carrier exemption".

As summarized in the Consultation Paper, the Copyright Board held in its Tariff 22 decision that this provision exempts ISPs from liability for the communication of musical works to the public by telecommunication when they are acting as mere conduits for communications by other persons.

CAIP recognizes that the common carrier exemption currently only applies in limited circumstances and that the Tariff 22 decision is currently under appeal. However, for all the reasons the Departments have already described and acknowledged in the Consultation Paper, CAIP strongly believes that the Board's reasoning can and should be applied to all copyrights and that the common carrier exemption should be extended accordingly.

As the Consultation Paper points out, current Canadian copyright rules were not developed taking into account the emergence of the ISP sector, and the application of these rules and the Act to ISP activities is unclear in certain respects. Other jurisdictions, including the US, the European Union, Australia and Japan, have enacted legislation to promote certainty about the liability for ISPs in their intermediary role. Accordingly, there is now a need to articulate a Canadian copyright policy that is cognizant of the interests of rights holders and ISPs and of the global nature of the digitally networked environment.

CAIP agrees with the Departments that the growth of a Canadian presence in the digitally networked environment will be aided by a viable and competitive ISP sector, and that a domestic copyright policy framework must recognize the extensive range and roles of ISPs in Canada.

We also fully agree that, in establishing such a policy framework, the Departments must consider the following points identified in the Consultation Paper:

• The evolution of a networked-based economy is desirable and inevitable as a social, cultural and economic engine;
• Connectivity is fundamental to Government Online, Electronic commerce and e-democracy;
• Canadians should be encouraged to participate in this economy, both as consumers and as providers of services and content;
• Important measures of the success of this economy will be the amount of creative content available on-line and the use made of it;
• On a practical level, it is likely not feasible for ISPs to attempt to monitor content. Moreover, in the copyright context, the copyright status of a work or the legal relationship between the right holder and the user or the work will often be unknowable to the ISP; and
• The persons who benefit from the content most directly are those who provide it and those who use it subsequently.

All of these reasons, as well as the other arguments cited above, provide strong support for extending the common carrier exemption for ISPs to rights in addition to the communications to the public right.

Exempting ISPs from Reproduction Right Liability

In support of exempting ISPs, from liability in relation to the reproduction right, the Consultation Paper correctly points out that, with current technologies, technical reproductions of content of all kinds are an integral part of the networked environment. An ISP would be unable to carry out one of its primary functions (packet switching) if it could not effect the technical reproductions of information that may be necessary to complete a communications activity.

The Paper also correctly acknowledges that there are considerable difficulties in attempting to identify which transmission processes result in the creation of a copy of a given work, however transient, that amounts to a "reproduction" for the purposes of the Act, where those reproductions are made, and whose server and storage facilities are involved, especially where such processes are largely automated.

Lastly, we agree with the Departments that subjecting ISPs to a reproduction rights tariff such as that proposed by SODRAC, instead of exempting them entirely from reproduction rights liability, would impose additional and distinct liability on ISPs that would have to co-exist with existing liability rules for works not covered by the tariff, thus creating a situation unique, unfair and overly burdensome for Canadian ISPs vis a vis ISPs in other jurisdictions.

Exempting ISPs from Other Copyright Liabilities

As noted above, one of the shortfalls of the current Act is the uncertainty of its application to ISP activities, and an important objective of this review exercise is to establish such certainty in a fair and practical manner.

To this end, the language to be employed to exempt ISPs from copyright liability must be clear and unequivocal with respect to the breadth and scope of its application. The exemption language used in the U.S. offers a good example of such language:

"A service provider shall not be liable ... for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if-

1. the transmission of the material was initiated by or at the direction of a person other than the service provider;
2. the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
3. the service provider does not select the recipients of the material except as an automatic response to the request of another person;
4. no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
5. the material is transmitted through the system or network without modification of its content."

We note that the Consultation Paper, in section 4.1, seeks comment with respect to a proposal to introduce a new "making available" right. While we do not offer any comment on whether such a right should be introduced or not, we take the position that, for the same reasons outlined above, ISPs should also be exempted from related liability should a "making available" right in fact be introduced.

We also note that the Consultation Paper, in section 4.3, seeks comment with respect to a proposal to create new types of secondary infringement consisting of the removal or alteration of rights management information that impede the management of rights set out by law, including the distribution and communication to the public of works or copies of works when it is known that rights management information has been in some way altered or removed without authorization.

Again, while we do not offer any comment on whether such secondary infringements should be introduced or not, we take the position that, for the same reasons outlined above, ISPs should also be exempted from related liability should they in fact be introduced. For example, if a rights management system is incompatible, for technical reasons, with an ISP's system, the ISP should not be required to change its system, nor should an ISP be held liable for secondary infringement if its own system automatically dismantles a particular rights management system or refuses to accept it.

Element #2: A Notice and Take Down Regime

The Consultation Paper proposes that a statutorily-specified notice and take-down process would apply subject to any contractual arrangements entered into by ISPs with rights holders.

We note and appreciate that, in the Consultation Paper, the Departments reference and commend CAIP and its members for our 1996 self-regulatory Code of Conduct and more recent Fair Practices Initiative. We also note the suggestion that the documents be reviewed with a view to building in provisions which specifically address notice and take down with respect to material that infringes copyright.

In fact, we consider that the documents already address instances of proven copyright infringement in their respective statements that CAIP members will not knowingly host illegal content. We have always taken the position that this commitment means CAIP members will remove content from web sites they host when advised by the proper legal authorities, following proper judicial procedures, that the material contravenes Canadian laws. This would include, for example, content that is ruled by a court to be in breach of the Criminal Code, to be libelous, or to be infringing someone's copyright.

The approach we advocate in the current copyright policy review, as explained below, is perfectly consistent with these historical self-regulatory practices; moreover, as we will also explain, it is also consistent with the approach the federal government is taking with respect to other illegal Internet content.

"Notice and Notice"

The Consultation Paper notes that agreements have already been concluded between certain rights holders and ISPs to deal with potentially infringing material on the ISPs' network facilities. While CAIP is not aware of any contractual arrangements which currently exist, we and the Canadian Cable Television Association (CCTA) have established a voluntary copyright management arrangement with the Canadian Recording Industry Association (CRIA). Under this arrangement, which the parties typically refer to as a "Notice and Notice" regime, CRIA first notifies a CAIP- or CCTA-member ISP in writing when an alleged infringement of CRIA's copyrights by a customer of the ISP is taking place; the ISP then notifies its customer of the allegation, again in writing, and sends a written confirmation that it has done so back to CRIA.

At the time the parties were exploring the concept of a "Notice and Notice" arrangement, CRIA indicated its belief that, based on anecdotal evidence, such an arrangement would curtail infringing activity dramatically. Indeed, this would appear to bear out in practice, as at least one of CAIP's larger members has found that 70 - 80% of its customers' sites have voluntarily withdrawn infringing content when notified.

In our opinion, the success to date of the "Notice and Notice" arrangement described above demonstrates that, in some circumstances, it will not be necessary to legislate "to address important preoccupations of both rights holders and the ISP community".

The success of the "Notice and Notice" arrangement also demonstrates that many apparent acts of copyright infringement on web sites - perhaps, in fact, the vast majority - may be curtailed through effectively channeled communications, without a need to resort to the more drastic and potentially legally contentious action by an ISP of actively taking targeted content down without a court order.

For this reason, we submit that the Act should be amended to codify a "Notice and Notice" regime for all ISPs in Canada. For example, ISPs could be required, upon receipt of a statutorily-defined notice from a copyright holder alleging copyright infringement by a site hosted by the ISP, to in turn provide a statutorily-defined notice of the allegation to the party responsible for the alleged infringing site within a specified period of time.

A statutorily-defined notice could, for example in the case of the notice provided to the ISP, be required to contain the elements identified in the Consultation Paper, i.e., be in writing, provide clear identification of the claimant and his/her interest in the allegedly infringing material; set out the precise claim, including a description of the infringing material; and set out the location of the infringing material. The statutorily-defined notice which the ISP would then in turn provide to the target of the allegation could also be required to contain these same elements.

CAIP submits that this legislated Notice and Notice regime should be attractive both to rights holders and the Departments because:

• it is efficient in terms of timeliness and costs;
• it appears to be effective in a vast majority of cases; and
• it would require minimal changes to the Act.

Judicially Ordered Take Down

In those instances in which the CAIP's proposed Notice and Notice regime does not result in the voluntary removal of the allegedly infringing content, we propose that an ISP be required to take down the content when served with a proper court order which, among other things, confirms in fact and in law that inclusion of the content on the web site amounts to a copyright infringement.

In our opinion, requiring ISPs to take down content based solely on the allegations of a third party would run counter to the fundamental principle of Canadian law that someone is innocent until proven guilty.

As the Departments are likely aware, a bill is currently before the House of Commons which, if ultimately passed, would amend the Criminal Code to create new offences for the transmitting, making available and accessing of child pornography over the Internet (Bill C-15: the Criminal Law Amendment Act, 2001). Clause 13 of Bill C-15 would add a new section to the Criminal Code which would establish a judicial process, based on an interim and then final court order, for the taking down of content alleged and then held to be child pornography.

We do not wish, by these comments, to appear to undermine the importance of copyright protection or to discount the potential economic harm to a copyright holder arising from Internet-based infringements. Nevertheless, we must question why the government (correctly, in our opinion) considers it necessary to establish a regime that puts in place judicial safeguards to govern the take down of content which is universally recognized as harmful at many levels and where swift action could almost always be justified, yet suggests that the take down of other allegedly illegal content need not be governed by such procedural safeguards.

CAIP recognizes that some cases of alleged copyright infringement on the Internet may arise where the timeliness of take down action will take on greater urgency than would perhaps arise in other cases. For this reason, CAIP would support amendments to the Act that would establish an expedited process for a copyright holder to seek and obtain a judicial take down order.

Element #3: A "Safe Harbour" for ISPs

As proposed, a legislative "safe harbour" would protect an ISP from liability to third parties, including the content provider, in cases where the ISP removed content alleged to be infringing copyright in accordance with a statutorily-created notice and take-down regime.

CAIP insists that no notice and take-down regime must be established unless accompanied by a comprehensive safe harbour for ISPs.

That being said, parties acting in accordance with a judicial order are by that action protected from third party liability. Thus, adoption of our recommendations above respecting take-down only in accordance with a judicial order would mean further amendments to the Act to create a new safe harbour regime would be unnecessary.

Conclusion

CAIP notes that the Departments contemplate further consultation meetings this fall. We support such an approach. We look forward to working out the details of our proposed Notice and Notice regime in direct consultation with other stakeholders.

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155, rue Queen Street Heritage Place Suite 1301 Ottawa Ontario Canada K1P 6L1
Telephone: 613 232 CAIP (2247) Fax: 613 236 9241 http://www.caip.ca

Tuesday, September 18, 2001


Comments – Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
Industry Canada
235 Queen Street - 5th Floor West
Ottawa, Ontario K1A 0H5


To Whom it May Concern:

Re: Consultation Paper on the application of the Copyright Act’s Compulsory Retransmission Licence to the Internet

These are the written comments of the Canadian Association of Internet Providers (“CAIP”) with respect to the above-noted Consultation Paper, as issued by Industry Canada and the Department of Canadian Heritage (“the Departments”) on June 22, 2001.

Introduction

CAIP is the only non-profit association representing all sectors of the Internet provider industry. Our membership is made up of a broad and diverse group of Canadian Internet Service Providers (ISPs), including large, medium and small independent access providers; incumbent and competitive telephone companies; backbone providers; wireless providers and web hosters. CAIP’s members currently provide approximately 80% of the Internet connections to Canadian homes, schools and businesses.

The association’s larger members include Aliant, AOL Canada, AT&T Canada, Bell Canada, Group Telecom, IBM, Sprint Canada, Telus and WorldCom Canada. CAIP’s Mission is to foster the growth of a healthy and competitive Internet service industry through collective and cooperative action on Canadian and international Internet issues.

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To this end, we represent our member companies before the federal government and such public authorities as the CRTC, the Copyright Board and the Competition Bureau as well as the federal courts. We actively participate in proceedings, meetings and debates relating to Internet self-regulation, high-speed access, ISP liability, Internet security and law enforcement, e-commerce policy and copyright.

CAIP has reviewed the comments of the Canadian Cable Television Association (CCTA) and agrees with and supports those comments as they relate to the ISP industry; specifically that:

· The government should wait until after the Copyright Board has issued a decision on Internet retransmission before deciding whether or not to proceed with amendments to section 31 of the Copyright Act;

· The Copyright Act is intended to be technologically neutral in its application, and should remain so;

· The use of banner advertising in conjunction with retransmission of distant signals over the World Wide Web is not a copyright issue; to the extent that banner advertising impacts on Canadian broadcasters it could be addressed by the CRTC in the context of the New Media exemption order; and

· If the federal government is persuaded to proceed with amendments to the Act, any such amendments should address only the narrow issue of the retransmission of distant signals to locations outside Canada by introducing a territorial restriction to the criteria that retransmitters must satisfy to qualify for the compulsory licence.

Despite its phenomenal growth over a very short period, the Internet is still very much in its infancy and its full potential as a communications, information and entertainment medium is far from being realized. Business models within the Internet industry are continuously changing and new and previously unimagined applications and services are being tested and introduced almost daily. Similarly, solutions to perceived or real weaknesses or problems with the Internet, such as those relating to the security of networks and transmissions, are constantly evolving and improving. There is no doubt that the Internet of tomorrow will be vastly different from that which Canadians are experiencing today.

In this respect, while ISPs themselves do not currently act in the capacity of broadcast retransmitters, it is very possible that they will have this capability at some point in the future. It is for this reason that CAIP takes an interest in the current debate respecting the possibility of changes being introduced to the existing retransmission compulsory licence regime.

It is CAIP’s position that the Copyright Act should remain technologically-neutral and not be amended in such a way that would limit the ability of Canadians to take advantage of the best available technology to distribute and receive broadcast signals.

CAIP understands and appreciates that program rights holders may be concerned that, if not somehow constrained, the global nature of the Internet could undermine the effectiveness of Canada’s compulsory licence retransmission regime. Specifically, CAIP recognizes that the retransmission regime contemplates that retransmitted broadcast signals will generally only be receivable within Canada. In this way, the regime preserves the integrity of the Canadian program rights market while not impacting on the ability of rights holders to license their programs in other international markets.

In CAIP’s opinion, this issue relates more to geographic reach or accessibility than to technology or the Internet. If a retransmitter, regardless of the technology it employs, is able to ensure that only persons located in Canada are able to receive the retransmitted signals, then the integrity of the Canadian rights market is maintained. For example, we anticipate that, at some future time, it will be possible for an ISP to operate a closed network such that certain content it selects (e.g. retransmitted signals) will only be accessible by persons located in a defined Canadian serving area. In such circumstances and for such purposes, the ISP’s operations will closely resemble those of a cable retransmitter, and the ISP should be able to benefit from the same retransmission regime available to the cable retransmitter.

The Canadian government has identified the Internet as the engine that will drive the country’s economy for the foreseeable future, and has and continues to adopt policies that will promote its Connectedness Agenda and ensure Canada is a world leader in the New Economy. Canada and Canadians have already benefited from the government’s forward-thinking approach to the Internet which, among other things, has allowed the medium to grow and develop and innovate unimpeded by burdensome regulations or unnecessary limitations. We urge the Departments to address the issues arising with respect to Internet retransmissions in a manner which is consistent with this successful approach.

Sincerely,



Jay Thomson, LL.B
President

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