ARCHIVED — A TELUS

COPYRIGHT REFORM PROCESS

REPY COMMENTS

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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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Reply comment from TELUS received on October 19, 2001 via e-mail

Subject: Consultation Paper on Digital Copyright Issues (The "Consultation Paper")

PDF Version

TELUS Corporation
Willie Grieve
Vice President Government and Regulatory Affairs


October 19, 2001



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

Dear Sir/Madame:

RE: Consultation Paper on Digital Copyright Issues (the "Consultation Paper")

TELUS is pleased to provide the following written reply comments 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. Consistent with the focus of our initial submission filed in this process, TELUS is limiting its reply comments to the issues of legal protection of technological measures and of liability of network intermediaries.

Legal Protection of Technological Measures

TELUS notes the numerous submissions, including some from the United States, that express reservations about, if not outright opposition to, Canada adopting the U.S. Digital Millennium Copyright Act (DMCA) approach to the protection of technological measures and rights management information. Instead of targeting the specific conduct of persons that willfully commit copyright violations, the DMCA prohibits goods, services, software, devices and methods that may have the potential to circumvent copyright protection. At the very least, this undermines the concept of "fair dealing". Even a "primary function test" to determine whether a software or hardware device should be prohibited on the basis of whether it is capable of circumventing technological protection measures, would be a crude test, as it could come down to a 51% to 49% margin for prohibition, with the result that the legitimate 49% functionality of the device would simply not be available for anyone's beneficial use. Rather than taking aim at te
chnology, legal action should be directed only against individuals who intentionally use technological measures to circumvent copyright protection.

TELUS' concern is that overly restrictive laws will stifle technological innovation in the hardware and software industries, and thereby also hamper the development of electronic commerce. For example, changes in the copyright laws could unwittingly contribute to the retention of obsolete business models and frustrate technological advancements, instead of providing an enabling framework for maintaining the balance of interests among creators, users and intermediaries in the context of rapidly changing technologies.1

Liability of Network Intermediaries

TELUS supports the view expressed by the majority of parties addressing the issue of Internet service provider ("ISP") liability to the effect that the Copyright Act should be amended to address the uncertainty currently attending that issue. As stated in TELUS' submission, for greater certainty and to bring an end to litigation before the courts and quasi-judicial regulatory agencies, the Government of Canada should amend the Copyright Act to exempt network intermediaries from liability (except in instances where such intermediaries fail to block access to infringing material after having received a court order to do so). Such an amendment should define the activities or functions that qualify a person for an exemption from liability (e.g., conduit, caching and hosting).

TELUS disagrees with the views of the Canadian Recording Industry Association (CRIA) and The Canadian Copyright Licensing Agency (CANCOPY) that there is no demonstrated need to address the issue of ISP liability at this time. We also strongly oppose CANCOPY's suggestions that ISPs should be strictly liable for their own reproductions and liable for secondary infringement with respect to reproductions by their subscribers.

TELUS also notes that the Canadian Chamber of Commerce, the Canadian Cable and Television Association, the Canadian Association of Internet Providers, and many other parties, agree with TELUS that network intermediaries should block access to, or take down, third-party sites that they host and that are alleged by a complaint to be illegal or to contain copyright-infringing content, only when advised by the proper legal authorities, following due judicial process, that the material on such sites contravenes Canadian laws.

Conclusion

Canadian copyright law must provide an appropriate balance between the rights of creators and the rights of users of content while creating an environment of certainty for ISPs in order to stimulate the growth of electronic commerce in Canada. Otherwise, the risk is that overly restrictive laws will stifle technological innovation in the hardware and software industries, and also impede the development of electronic commerce.

TELUS looks forward to participating in any future consultations.

Yours truly,

[original signed by Fred Lo on behalf of Willie Grieve]

Willie Grieve
Vice President
Government and Regulatory Affairs

JM/bm


1 We note the anti-trust investigations into possibly anti-competitive behavior on the part of the sound recording industry that are currently on-going in the European Union and the United States, two jurisdictions that have adopted copyright laws that prohibit the manufacturing of potentially infringing devices.