ARCHIVED — A CAIP

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 Canadian Association of Internet Providers received on October 22, 2001 via e-mail

Subject: Consultation Paper on Digital Copyright Issues

These are the written reply 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.

Judy Stonehouse, EAA to the
President & Director of Member Services
CAIP (Cdn. Assoc. of Internet Providers)


PDF Version

Monday, October 22, 2001
copyright-droitdauteur@ic.gc.ca



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 Digital Copyright Issues

These are the written reply comments of the Canadian Association of Internet Providers To the extent there are inconsistencies, CAIP Member AOL Canada supports the comments submitted by AOL Time Warner in this proceeding. (“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.

1. INTRODUCTION
Consistent with the focus of our initial submission filed in this process, we are limiting these reply comments to only those specific submissions that address liability of network intermediaries, such as Internet Service Providers (ISPs), in relation to copyright. Specifically, we respond to this aspect of the submissions of the following parties: CAB, CBC, CCTA, the Canadian Chamber of Commerce, CANCOPY, CLA, CMPDA, CRIA, DGC/DRCC, ITAC, PIAC, SOCAN and SODRAC. We do not comment on the submissions of CAIP members Bell Canada et. al, IBM and TELUS, other than to note that they advocate the same approach as we do.

Not replying to a specific submission should not otherwise be taken as concurrence by CAIP with that submission.

2. COMMENTS

CAIP’s Position

In our initial comments, CAIP supported legislative clarification that ISPs acting as intermediaries are not liable for copyright infringements by third parties using the ISP’s network or facilities. In essence, CAIP supports codification of the Copyright Board’s decision in the Tariff 22 case, and extending application of the common carrier exemption in s. 2.4(1)(b) of the Copyright Act (“the Act”) to other copyrights, including the reproduction right.

CAIP also advocated codification of the successful, efficient and affordable “Notice and Notice” regime currently followed on a voluntary basis by CAIP and CCTA members with respect to works owned and administered by CRIA members, rather than the notice and take-down regime contemplated in the Departments’ Consultation Paper, which could be costly and overly burdensome.

Finally, CAIP argued that any take-down order necessary in the minority of cases where infringing material is not voluntarily removed as result of a customer receiving notice under the “Notice and Notice“ regime should be made by a court rather than by an alleged copyright holder. In this way, decisions as to the legality of a customer’s actions and enforcement of such decisions would be made in the same manner and by the same authority as other legal decisions, namely by a court of law.

ISP Liability
We support the comments of the vast majority of parties addressing the issue of ISP liability that the Act should be amended to address the uncertainty that exists in this area. While we strongly support the Tariff 22 decision of the Copyright Board, the fact that it is currently under appeal demonstrates that legislative certainty is needed.

We, therefore, strongly disagree with CRIA and CANCOPY’s position 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 for reproductions of their subscribers.

Notice and Take-Down vs. Notice and Notice

Most parties supported the codification of some kind of notification regime to advise ISPs of infringing activity by their customers with a follow-up take-down process where necessary to remove infringing content. We note that the Canadian Chamber of Commerce, ITAC and CCTA have joined CAIP members Bell Canada et al, TELUS and IBM in recognizing the efficiency and effectiveness of the type of “Notice and Notice” regime we advocate.

We would also suggest that a number of parties who supported the notice and take-down regime proposed by the Departments may not have been aware of the voluntary CRIA/CAIP/CCTA Notice and Notice approach nor of its success to date. We would therefore think that, once they do become aware of this approach, they too will recognize its benefits in terms of simplicity, efficiency, affordability and effectiveness.

Alleged Copyright Holder Notice vs. Court Order
The Canadian Chamber of Commerce, ITAC and CCTA agree with CAIP that a court of law is the proper authority to decide whether allegations of copyright infringement by an alleged copyright holder should result in legal actions being taken against another party.

For its part, CBC argues that a notice and takedown regime should only apply when the public interest is clearly compromised, e.g. child pornography or hate literature. PIAC points out that that the US Notice and Take-Down regime infringes on user privacy. Even SOCAN cautions that Canada should not repeat the same mistakes or complexity as the US DMCA.

In our original submission, we noted that a Government bill currently before Parliament (Bill C-15A) would establish a judicially-ordered take-down regime for child pornography on the Internet. Another Government bill tabled on October 15 (Bill C-36) would establish an identical regime for online hate propaganda.

While we appreciate the potential economic damage suffered by copyright holders as a result of online infringement of their copyrights, we fail to see any justification for creating a lesser and non-judicial standard to address this particular content issue when the Government off Canada clearly considers a more stringent standard is necessary for content issues it considers can damage public health and national security.

Reproductions
Lastly, CAIP opposes SODRAC’s suggestion that the functions of an ISP regarding the reproductions that occur during a transmission over the Internet are analogous to the functions of existing cable and DTH transmitters for communications to the public by telecommunication.

CAIP instead agrees with those parties who submit that ISPs should not be liable for the temporary reproductions that may occur during the course of a transmission over the Internet.

All of which is respectfully submitted.

Jay Thomson, LL.B.
President

/jms