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COPYRIGHT REFORM PROCESS
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
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.
Submission from Canadian Copyright Licensing Agency (CANCOPY) received on September 14, 2001 via e-mail
Subject: Submission of the Canadian Copyright Licensing Agency (CANCOPY)
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Submission of the The Canadian Copyright Licensing Agency (CANCOPY) On Digital Copyright Issues
Executive Summary
CANCOPY supports a step-by-step approach to copyright reform as proposed by the Government, both to ensure a brisk pace of reforms and to establish a solid and logical progression toward a modern Copyright Act. Choosing the steps effectively means, in CANCOPY's opinion, addressing the issues which will allow the Government to ratify the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
There is an urgent need, in CANCOPY's submission, to introduce provisions dealing with the legal protection of technological measures and rights management information into the Copyright Act. Exceptions or limitations to these provisions will only erode their benefit and gradually make them meaningless. The solution to ensuring access for legitimate uses of protected works rests, rather, in the availability of easy and affordable collective licensing and in the exploration of new options, based on the concept of collective licensing and the role of the Copyright Board.
At this stage in the discussion, there is no urgent reason to address the issue of limiting the liability of Internet Service Providers. In CANCOPY's submission, the issue to be addressed is that of establishing a new form of secondary infringement which would see Internet Service Providers liable for the acts of their subscribers
The Canadian Copyright Licensing Agency (CANCOPY) welcomes the opportunity to present its views to the Government on improving access to copyright works in the digital environment. Part A of CANCOPY's submission provides introductory comments, traces CANCOPY's evolution and lends support to the Government's step-by-step approach. As such, it sets the stage for Part B, in which answers are provided to each of the questions raised by the Government. In answering the questions, CANCOPY's submissions regarding amendments to the Copyright Act are made
A. Setting the Stage
1. Introductory Comments
Improving access to copyright works is in the interest of all Canadians. The Canadian Copyright Licensing Agency (CANCOPY) applauds the government of Canada's continuing initiatives in this regard.
Canada's cultural community has awaited this opportunity to assist in the development of legislation that will enable full participation in the digital world, a world in which Canada is second only to the United States in developing Internet infrastructure. Canadian creators and publishers recognize the opportunity this presents to develop national and international markets for Canadian intellectual property and to improve access to Canadian works.
The digital world allows new, unchecked access to copyright works. The balance between the interests of copyright users and copyright owners maintained through the Copyright Act has been skewed. Digital access must be met with digital controls within the Copyright Act to restore that balance.
CANCOPY appreciates that providing legal protection for technological measures and rights management information may raise concerns in the user community that the protections go too far. It is CANCOPY's position that imposing exceptions to the Copyright Act does not offer a solution. In the electronic world, exceptions would significantly erode the benefits of the proposed protections.
It is CANCOPY's opinion that solutions can be found through the concept of collective societies as well as in the role of the Copyright Board. Such an approach would encourage rightsholders to provide greater access in the digital world, while at the same time addressing the concerns of the user community regarding legitimate uses of protected works.
In speaking on copyright matters, CANCOPY generally limits itself to supporting the positions taken by its members. This submission therefore addresses matters of key concern to the creator and publisher community, with particular reference to rights administered by CANCOPY.
2. CANCOPY's e- Volution
The Canadian Copyright Licensing Agency was created in 1988 by publisher and creator associations as a result of government's actions to encourage collective approaches to licensing. Since that time, CANCOPY, the business name that aptly identifies this not-for-profit association, has dramatically demonstrated an ability to provide access to copyright works with a pragmatic licensing regime that, in 2000, licensed the reproduction of thousands of pages of copyright materials generating more than $20 million dollars in royalties for copyright holders. There is evidence of dramatic usage increases, particularly in educational institutions, demonstrating the efficacy of CANCOPY's licensing programs and the ease of access they provide to copyright works. As photocopying technologies matured in the 1980s, copyright holders became aware of major acts of copyright infringement: the photocopying of whole books, articles and scientific documents, without reference to the creator or owner of the copyright. At the s ame time, copyright holders recognized the necessity of maintaining a balance in copyright legislation between protection of their property and allowing access to works. CANCOPY offers a simple licensing process that would meet both needs.
CANCOPY members include 17 creator organizations representing the interests of authors, journalists, photographers, illustrators and artists and 15 book publishing, learned journal, magazine and newspaper organizations. 4,703 creators & 437 publishers mandate CANCOPY individually. Its board of directors is comprised of nine creator members and nine publishers.
CANCOPY provides access to more than 1.8 million Canadian works and to millions of foreign copyright works.
CANCOPY offers a licensing option for those who wish to photocopy copyright material -- one that has been accepted by many institutions and individual users. The membership has steadily reinvested royalty income to develop new licensing systems. By the end of 2002, Canadians will benefit from the most advanced copyright access and licensing system available anywhere in the world and, as a result, CANCOPY will have laid the groundwork for digital rights management. However, many of the services that can be developed to serve a digital regime cannot become operative in the absence of new legislation to restore a balance between the needs of users and those of copyright holders. The instant access that is provided by digital technologies must be balanced by providing some control of that access if copyright holders are to have any say in the use of their property right.
CANCOPY believes that Canadians can seize early opportunity in the world marketplace by ensuring that rights management in an online environment receives priority in the reform process. CANCOPY has been a leader amongst participants in the Government's efforts towards streamlined rights clearance. CANCOPY has assumed a leading role internationally in the development of new identifiers to speed searches for copyright works, lay a groundwork for new compliance technologies, and ensure that all Canadian-created works are indexed and available to the world.
3. Step-by-Step Reform Process
CANCOPY supports the efforts of the government to approach copyright reform in a "step-by-step" manner that ensures a brisk pace. However, in order for this process to be effective, the steps must be carefully selected with a view to putting in place the necessary blocks for the building of a modern Copyright Act in a cohesive and efficient manner. The selected pieces, and the order chosen to address them, must trace a clear path for Canada's leadership in the new economy.
It is also CANCOPY's position that Canada must continue to lead and support international intellectual property initiatives. In order for Canada to be a key player in the international scene, Canada's domestic initiatives must not fall behind international developments. It is CANCOPY's position that the selection and ordering of the steps for reform must at the very least set the stage for ratification of the WIPO treaties. The importance of reciprocity and national treatment granted to states that have ratified the treaties cannot be overstated in the context of the Internet. Nothing typifies the borderless world more than the Internet. Since a significant portion of the commercial exploitation of Canadian works is done outside of Canada, the complete value of the proposed protections will only be achieved once the treaties are ratified and Canadian nationals benefit from similar protection abroad. To illustrate, payments to Cancopy by foreign reprographic rights organizations for use of Canadian works gr ew by 30% between 1999 and 2000. Another increase of 10% is forecast for the year 2001.
Given the summer 1998 consultations on the WIPO treaties, CANCOPY is disappointed that the first items to be addressed are insufficient to allow the government to follow-up with the next logical step -- the decision to ratify the WIPO treaties. This first step should, therefore, include two additional issues: (i) the duration of the protection of photographic works, and; (ii) moral rights of performers. It is important to address these additional issues now so that the Government may put in place the necessary foundation for the next logical step in building a modern Copyright Act.
There is no urgent need to address the issue of ISP liability at this time. There is no evidence to suggest that rights holders are abusing the strict liability by unreasonably requesting authorization prior to any caching or other like activity being performed. There is also no evidence that the uncertain liability of ISPs, and others, is limiting investments required to grow and expand the Internet.
1. The Making Available Right
CANCOPY does not dispute the view presented by the government that the rights of communication and reproduction granted under the Copyright Act are adequate to encompass the right of authors to make available their works to the public, but is of the view that for greater certainty there should be some clarification.
To encompass fully Article 8 of the WIPO Copyright Treaty, the Act should make clear that a communication to the public is subject to the authorization of the copyright owner even where such communication is accessed on-demand by individual users, that is, "from a place and at a time individually chosen by them". Currently, the only authority to this effect is the "Tariff 22" decision. The Federal Court of Appeal will hear the appeal of that decision in September 2001. In any event there should be a legislative amendment to remove any doubt that communications may be to the public even where they do not go simultaneously to intended recipients.
Given that the questions raised under section 4.1 of the Consultation Paper, as CANCOPY understands them, are raised with respect to a distinct making available right as it applies to the rights of performers and sound recording makers, CANCOPY will not be presenting answers.
2. The Legal Protection of Technological Measures
It has already been three years since CANCOPY made its original submission to the Departments regarding the immediate need for the introduction of legal protection of technological measures. This need has now become acute. The daily headlines are full of stories relating to digital piracy of one kind or another.
CANCOPY's position continues to be that the Government must introduce two provisions regarding the legal protection of technological measures, including accompanying civil and criminal remedies:
Anti-Circumvention of Technological Measures
It would be an infringing act to remove or circumvent any device or measure intended to limit reproduction, [performance in public or communication to the public]/[or any other right granted under the Copyright Act] of a work or other subject matter. It would be an infringing act to distribute or transmit a work or other subject matter knowing that such a device or measure had been removed or bypassed.
Manufacturing and Trafficking in Anti-Circumvention Devices
1. Given the rapid evolution of technology and the limited information currently available regarding the impact of technological measures on control over and access to copyright protected material, what factors suggest legislative intervention at this time?
Piracy in All Canadian Homes
In CANCOPY's view, Canada is already late in adopting legislation and policies that clearly signal that it will not tolerate cyberpiracy.
The problem of digital file sharing which has plagued the sound recording industry for several years now, namely Napster, has begun its attack on literary works. Works by Canadian writers William Gibson and Douglas Coupland can easily be found on Gnutella.
A British study prepared by a Web monitoring company recently found that 7,500 copyright protected literary titles, by authors such as Stephen King and J.K. Rowling, were available for free online. Not only were the pirated works scanned from the original print version and then digitally reproduced, but in some cases, pirated copies were obtained by cracking the protection codes placed on e-books.
In CANCOPY's estimation, literary works have become the subject of large-scale infringement over the Internet in the same way as sound recordings have been for several years now. We estimate that instances of literary works cyberpiracy are in the millions. The types of literary works being pirated over the Internet range from scholarly journals to novels to textbooks. Cyberpiracy has already started to significantly impact the sales of publishers in Canada. Of course, the problem is not limited to literary works but includes sound recordings, movies, software programs and all other type of multi-media works.
The government must act immediately to put the force of law behind technological protection measures. The use and legal protection of technological measures would have prevented the Napster debacle, which saw millions of acts of cyberpiracy committed, over the globe, by otherwise law-abiding citizens. Canadians were no exception to this phenomenon.
Technological Measures Ineffective Without Legal Protection
Industry is using technological measures, such as watermarks and encryption, to combat cyberpiracy. The benefit of technological measures, however, may be fleeting as hackers are quick to circumvent the measures and spread the now unprotected works worldwide.
Given the government's inaction, we are witnessing in Canada hacking of technological measures without legal repercussions. This is making a mockery of our copyright regime. There is no doubt in anyone's mind that hacking of these measures will continue to occur unless strictly prohibited by law. Canada must play its part in the international arena and set straight its own laws as part of the global effort to combat cyberpiracy. The law must work with technology measures, and not against them, to adequately address cyberpiracy.
Technology Neutral Legislation
Finally, the rapid evolution of technological measures should not be considered an obstacle to implementing anti-circumvention and trafficking measures. As long as no action is taken, damage to rights holders continues unabated.
2. Technological devices can be used for both copyrighted and non-copyrighted material. Given this, what factors should be considered determinative in deciding whether circumvention and/or related activities (such as the manufacture or distribution of circumvention devices) ought to be dealt with in the context of the Copyright Act, as opposed to other legislation?
It is CANCOPY's position that the circumvention of technological measures should be addressed in the Copyright Act. Other Acts would provide only a partial solution to the unique problems faced by copyright holders. Given the adequacy of the Copyright Act, it makes no sense to devise entirely new legislation.
Technological measures aim to restrict the unauthorized reproduction of intangible properties in digital form, e.g. software, books, sound recordings and movies. The Copyright Act governs the protection against such unauthorized reproduction. Whether a work benefits from this protection, or in other words is copyrighted or non-copyrighted material, is determined by the criteria set out in the Act itself. Since the measures are used specifically in the exercise of a right under the Copyright Act, the legal protection of those technological measures falls squarely under the Act.
Other suggested Acts are not devised to address complications specific to the commercial exploitation of intangible property. First, it is important that the right holder have legal standing in order to prevent hacking. Copyright is, after all, a private economic right. Acts that are primarily designed with the public interest in mind, such as the Competition Act and the Criminal Code, do not generally provide legal standing to individuals. If the legal protection of technological measures were made under such Acts, only widespread circumvention of technological measures would likely lead to prosecution. Only then would the activities be of sufficiently high public priority to merit the use of publicly funded resources.
Second, evidentiary and other problems faced by rights holders in seeking damages and injunctive relief for copyright infringement require special provisions, such as statutory damages and the "wide injunction", not provided for in non-IP legislation.
Last, there is little point in creating another Act that would need to replicate much of the framework already provided for in the Copyright Act.
3. If the government were to adopt provisions relating to technological measures, in which respects should such provisions be subject to exceptions or other limitations?
Exceptions or limitations must not conflict with the normal commercial exploitation of the work by the copyright holder. It is CANCOPY's opinion that Canada's international obligations under the Berne Convention and WIPO Copyright Treaty require that this approach to be taken. The commercial availability test introduced in Phase II is in line with these international obligations and it is CANCOPY's position that it should be the key criteria for any exception under the Copyright Act.
As a rule, where collective licensing is in place there should be no exception or limitation to a right for which the holder has a legitimate interest. As defined in the Act, anytime that a licence to reproduce a work is available from a collective society within a reasonable time, for a reasonable price and with reasonable effort, it is commercially available. For example, CANCOPY ensures that works are easily available to users for a fair fee. Since its inception in 1988, CANCOPY has made enormous strides in facilitating access to protected works by offering licensing options to those who wish to photocopy copyright material. Our members have steadily reinvested licensing income to provide new licensing systems. By the end of 2002, Canadians will benefit from the most advanced electronic copyright access and licensing system available anywhere in the world. This will raise access by Canadians to copyright material to new heights.
In the digital environment, as evidenced by Napster, the commercial exploitation of a work requires enhanced technological protection. In practical terms, this means that technological measures must be attached to a work at all times and, as discussed in question 1, must be backed by legislation. As soon as the measure is removed, whether or not the removal is for a legitimate purpose, the work becomes vulnerable to widespread and immediate worldwide infringement. Obviously, this seriously prejudices the legitimate interest of the right holder. Any exception to the technological measures provisions would erode the benefits of the measures and gradually make them meaningless.
Some would argue that the lack of exceptions to technological measures would constitute a new "access" right. The reality is that this merely provides the rights holders with an effective means of controlling the distribution of their works in a digital environment so that they may be commercially exploited. This ability to control the distribution of a work has always been part of copyright. The right of first publication, the right to communicate a work to the public by telecommunication and the public performance right are all examples of the rights holders' ability to control the distribution of a work.
Should the Copyright Act force access to works when digitally "locked-up"? To answer positively is analogous to saying that a publisher could be forced to reprint a book now out-of-print, for the sake of research and private study by an individual. We must not lose sight of the fact that "locked-up" works are commercially available. In fact, commercial exploitation is the very reason why works are locked-up.
CANCOPY is not insensitive to the arguments put forward by the user community. CANCOPY believes that collective societies can facilitate access to works for legitimate uses by operating as a gateway between users and rights holders. The Copyright Board can also play a role in determining when there are abuses of the technological protection measures. The unlocatable copyright holder application process is a good example of how collectives societies and the Copyright Board can work together to locate right holders and authorize uses of protected works.
4. Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing technological measures?
It is not the introduction of provisions for the legal protection of technological measures which gives rise to privacy issues. Privacy issues exist irrespective of the suggested amendments to the Copyright Act and are no different from those that arise in the context of e-commerce. Given the important policy objectives of privacy legislation, such legislation should as a rule be paramount over other legislation, including the Copyright Act. For that reason, it is CANCOPY's position that privacy issues should be dealt with in the broader e-commerce context and not at this time or specifically under the Copyright Act.
3. Legal Protection of Rights Management Information
Rights management information is of crucial importance in enabling rights holders to track and manage the use of their works in a digital environment. This information is critical to enhancing access to works made available through collective licensing. The integrity of the information is vital to maintaining the increased accessibility and identification this information provides.
It is CANCOPY's position that the Government should introduce in the Copyright Act provisions regarding the legal protection of rights management Information, including civil and criminal remedies, consistent with Article 12 of the WIPO Copyright Treaty. Specifically, these provisions should include language to like effect:
Any person who knowingly performs any of the acts provided for below, or with respect to civil remedies, performs such acts having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement, or impede the management of any right granted under the Copyright Act:
- to remove or alter any electronic rights management information without authority;
- to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority; or
- to knowingly provide false or misleading rights management information
"Rights management information" is defined in the Copyright Act to mean information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public 1. What information should be protected under the Copyright Act? Given that information may cease to be accurate over time, should information relating to, for example, the owner of copyright and to terms and conditions of use be protected?
All information relating to the authorship, ownership and terms and conditions of use of a work, as well as any associated code, should be protected against tampering as provided for by Article 12 of the WIPO Copyright Treaty.
Rights management information plays an important role in providing access to works by directing users to the owner of the work and the authorized terms and conditions of use. The protection of rights management information would guard against tampering with the information. Limiting the protection to information that is unlikely to change over time would provide uneven reliability of the information. The prohibition against tampering with the information, whether or not that information may change, facilitates the tracing of the information by setting a point of departure that can be relied on to construct, for example, the chain in title or term and condition of use. Since it is CANCOPY's position, as explained under question 2 below, that this information should only be prima facie evidence of ownership and terms of use, the fact that some of the information may change over time is not a reason to exclude it from protection
In CANCOPY's opinion, collective societies will play an important role in collecting and administering rights management information, including changes to such information. Reliable copyright management information (beyond just the identification of the work, the author and first owner of copyright as suggested by the Departments in option B) is critical to the effective licensing of works in the digital world. In order to facilitate access to works, rights management information is currently being standardized by the International Standardization Organization ("ISO"). ISO is creating new identifiers to tag all creations: music, film, text and still images. The international standard for music and film has already been set. The text identifier code will be determined by 2003 and a code for still images will follow. CANCOPY is participating in the development of the ISO text identifier. This data together with other ISO and industry-designed standard data such as provided by the Digital Object Identifier ( DOI) ensure that new levels of efficiency in accessing content can be achieved. The electronic transfer of such metadata amongst the worlds' rights organizations is already beginning. The protection of rights management information is fundamental to ensuring the reliability of identifiers and to enabling worldwide access to works.
2. Certain terms and conditions may not be legally valid in Canada if they are contrary to public policy. In light of this, what limitations should there be on the protection of such information? Is a provision required that specifies that the protection of such information does not imply its legal validity in Canada?
It is CANCOPY's position that copyright management information should only constitute prima facie evidence of ownership and terms and conditions of use. Whether this requires a separate provision is a drafting issue and CANCOPY makes no comment on it at this time.
The determination of the legal validity of the information protected from tampering, such as terms and conditions of use, ownership or term of protection, is a question of law often requiring extensive factual investigation. Only appropriate judicial and quasi-judicial bodies should make such determinations. For the Copyright Act to imply that individuals are free to make and act on such complex factual and legal determinations themselves is comparable to allowing them to take the law into their own hands.
It is worth noting here that the suggested provisions are secondary infringements and do not impose strict liability. Liability under the proposed rights management provisions would only arise when an individual "performs such acts having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement or impede the management of any right granted under the Copyright Act". In other words, if an individual does not intend that the tampering leads to or conceals an infringing act, there would be no sanction under the provisions.
3. Given the fact that some technologies serve a dual purpose, i.e., reflect rights management information and protect a work against infringement, how should provisions concerning rights management information take into account provisions regarding technological measures?
As mentioned above, it is CANCOPY's position that there should be no exceptions to the technological measures provisions. As a result, It is CANCOPY's opinion that there would be no conflict between the technological measures provisions and the rights management information provisions. There is therefore no need for the rights management provisions to take into account provisions regarding technological measures since the provisions address separate actionable wrongs.
4. If the Act were amended to protect rights management information, does the fact that some technologies may be used both to set out rights management information and protect a work against infringement mean that duplicate or overlapping sanctions could result in some cases?
It is possible that duplicate and overlapping sanctions could result in some cases. It is CANCOPY's position that this should not be an obstacle to the introduction of these provisions as suggested in this paper. The copyright world is full of instances that lead to simultaneous liability for infringement of multiple rights under the Act as well as multiple works. For example, it is often necessary to reproduce a work in order to communicate it to the public by telecommunication. When this is done without the authorization of the rights holder, two rights under the Act are infringed simultaneously.
5. Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing rights management information?
Again, it is CANCOPY's position that privacy issues exist irrespective of the suggested amendments to the Copyright Act and are no different from those that arise in the context of e-commerce. Given the important policy objectives of privacy legislation, such legislation should as a rule be paramount over other legislation, including the Copyright Act. For that reason, it is CANCOPY's position that privacy issues should be dealt with in the broader e-commerce context and not at this time or specifically under the Copyright Act.
4. Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright
There is no urgent need, in CANCOPY's submission, to address the issue of limiting the liability of Internet Service Providers. The reality is that while rights holders are not abusing their ability to hold ISPs strictly liable under the Copyright Act and exposure to copyright infringement liability has had no impact on investments necessary to grow the Internet, cyberpiracy is rampant. It is CANCOPY's position that ISPs must continue to be strictly liable for copyright infringements occurring as a result of their activities. Rather than concluding that there is an urgent need to amend the Copyright Act to limit ISP liability, these facts indicate a need to extend ISP liability by making ISPs more clearly liable for infringing activities performed by their subscribers
1. Do the current provisions of the Copyright Act already address ISP concerns?
It is CANCOPY's position that the Copyright Act does not lead to unreasonable or unmanageable copyright liability situations for ISPs. Instead, it is CANCOPY's position that ISP liability should clearly extend to acts performed by their subscribers by introducing a new type of secondary infringement.
From the rights holders' perspective, there are two instances where ISPs should be held liable for the unauthorized reproduction of copyright works. The first is as a result of the unauthorized reproduction of copyright works by ISPs themselves through, for example, caching and hosting activities. The second is a consequence of the "permission" granted by the ISP to subscribers to reproduce and disseminate works without authorization by the copyright owner.
The first instance is to a large extent covered by the Act through strict liability for reproductions made without authorization of the copyright holder. There is no evidence to suggest that rights holders are abusing the strict liability by unreasonably requesting authorization prior to any caching or other like activity being performed. On the other side of the equation, there is also no evidence that the uncertain liability of ISPs, and others, is limiting investments required to grow and expand the Internet. Notwithstanding this, strict liability should continue to apply to all reproductions. Strict liability is a safety-net for rights holders to effectively control the reproduction of their works, where this proves necessary. Should there be instances where authorization is reasonable to expect, collective licensing can be part of the solution and can alleviate the administrative burden.
The second instance, "permission", is not currently addressed by the Act. Generally, it is difficult for someone to trace an infringement all the way to the subscriber. Since the Act does not specifically provide for a secondary infringement that would hold the ISP liable for the acts of its subscribers, the Act does not provide rights holders with the tools necessary to prevent unauthorized reproduction and dissemination of their works on the Internet. While this may not be a concern of the ISP community, it is a concern for the rights holders that, in CANCOPY's opinion, must be addressed by the Government when considering ISP liability issues.
2. Some ISPs and rights holders have entered into agreements for dealing with infringing material. In what respects is this approach sufficient or insufficient
While CANCOPY takes the position that agreements may be sufficient to address ISPs' strict liability for reproduction, none have been entered because no ISPs have approached CANCOPY. A collective licensing solution could certainly be explored by CANCOPY. Collective societies in general could play a role in administering such agreements.
3. What other intermediary functions that have not been discussed in this section, but that are nonetheless being carried out by ISPs, ought to be considered when developing a policy regarding ISP liability?
One of the important intermediary functions played by ISPs is that of facilitator. They facilitate the reproduction and dissemination of works on the Internet. At times, they "permit" infringing activities to take place. This function should be addressed by the Copyright Act by holding ISPs liable for infringing activities performed by their subscribers, when the ISP knows or ought to have known of the infringing activity. In Cancopy's submission, section 27(5) of the Act serves a model for this type of intermediary function. The section makes any person who permits a theatre to be used for the performance in public of a work liable for infringement where the public performance infringes copyright and the person had reasonable ground to suspect the infringement. Similarly, an ISP would be liable as a result of its function as infringement facilitator, i.e. providing the means necessary for infringement and allowing the infringement to take place. (This is in addition to strict liability for unauthorized re productions of copyright works by the ISPs themselves.)
4. To the extent that a notice and take-down system is being contemplated, how would such a system affect the framework in Canada for the collective management of copyright? What alternative proposals should be considered? Under what conditions would a compulsory licensing system be appropriate?
A notice and take-down system should work hand-in-hand with collective management of copyright.
From the rights holders' perspective, there are two instances where ISPs should be held liable for the unauthorized reproduction of copyright works. The first is a result of the unauthorized reproduction of copyright works by ISPs themselves through caching and hosting activities. The second is a consequence of the "permission" granted by the ISP to subscribers to reproduce and disseminate works without authorization by the copyright owner. The first, where the ISP is itself the infringer, can be dealt with through collective licensing. The second, where the ISP is providing the means to its subscribers to reproduce, should be addressed by introducing a secondary infringement covering the infringing activities of its subscribers.
Strict liability
It is CANCOPY's opinion that the reproduction right gives rise to a strict liability under the Copyright Act. As a result, ISPs must request authorization from the copyright holder or be licensed before performing themselves any activity (such as caching and hosting) that, knowingly or not, results in the reproduction of a copyright work. As discussed under question 1, there is no evidence that rights holders are "abusing" the strict liability provisions by demanding unreasonable payments or, for the moment, even requesting authorization be obtained prior to caching or like activities by the ISPs. At the same time, it is important that the Copyright Act continue to provide for strict liability for reproduction. Strict liability provides the copyright holders with the necessary safety-net to effectively control the reproduction of their work, where this proves necessary.
In addition, should it become necessary to authorize such uses, collective licensing can address the difficulty in obtaining authorization for works being reproduced by the ISPs themselves. Since the ISP is not easily made aware of these infringements, collective licensing would also significantly reduce the administrative burden and, we suggest, the near impossibility of clearing copyright one instance at a time.
Liability for infringement by subscribers
ISPs' liability or "responsibility" for infringing activities performed by their subscribers is justified by the fact that the ISP's system is, in essence, a tool that enables infringement. Given the technical difficulties associated with someone other than the ISP identifying the actual subscriber, it is more practical to request that the ISP assume the responsibility of removing infringing works. Imposing this type of liability on ISPs is necessary to ensure their assistance - often critical - in controlling widespread infringement.
This type of liability or responsibility for infringing activities performed by others is not new to the Copyright Act. For example, as discussed above, section 27 (5) makes any person who permits a theatre to be used for the performance in public of a work liable of infringement where the public performance infringes copyright and that person had reasonable ground to suspect copyright infringement. Similarly, the ISP (who permits the use of its system for the reproduction and dissemination of works) would be held liable when, for example, notice of infringement (which provides the ISP with reasonable ground to suspect infringement) is given. The ISP of course would be able to mitigate possible damages by taking down the infringing material.
Collective licensing combined with a notice and-take down regime would greatly reduce the liability of ISPs. Relief from strict liability that is not tied to participation in collective licensing such as that provided for in section 30.3 of the Act, would significantly reduce collective societies' ability to legitimately licence uses on the Internet.
5. To the extent that issues surrounding the scope and application of the reproduction right are being examined in relation to Internet-based communications, are there reasons why this examination should be restricted to the question of ISP liability?
It is CANCOPY's position that the Copyright Act should continue to provide strict liability for the unauthorized reproduction of copyright protected works, whether or not this is done in the Internet context and irrespective of who performs the reproduction. Given the rapid evolution of the Internet and its uses, it is difficult and unadvisable to crystal-ball the situation by deciding today whether there would ever be a need for remedies with respect to the reproduction right to apply to transient and/or automatic reproductions of works on the Internet by ISPs or others. Again, there is no evidence of rights holders abusing their reproduction right by unreasonably requesting authorization or payment for transient and automatic reproductions.
October 4, 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
Via e-mail: copyright-droitdauteur@ic.gc.ca
(Original by Mail)
Dear Sir or Madam:
Re: Submission of the Canadian Copyright Licensing Agency (CANCOPY) on Digital Copyright Issues
Further to the Submission of the Canadian Copyright Licensing Agency (CANCOPY) on Digital Copyright Issues sent on September 14, 2001, I am writing to advise that the views presented therein regarding the liability of internet service providers are not necessarily shared by all of CANCOPY’s member organizations, in particular the Canadian Newspaper Association.
Given that rights holders and users are sometimes one and the same, conflicts are inherent and often unavoidable. CANCOPY continues to work constructively with its affiliates and member organizations to protect and advance the interests of Canadian authors and publishers.
CANCOPY consents to the posting of this letter on the Industry Canada and Department of Canadian Heritage Websites, and to the supply of paper copies to anyone making such a request.
Yours truly,
Fred Wardle
Executive Director
(address removed)
- Date modified:
