ARCHIVED — A CMPDA

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 The Canadian Motion Picture Distributors Association received on October 22, 2001 via e-mail

Subject: CMPDA Reply Submission - Digital Issues

The Canadian Motion Picture Distributors Association
(Address, telephone and fax numbers removed)

Version PDF

October 22, 2001
By e-mail - 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

This is the submission of The Canadian Motion Picture Distributors Association (CMPDA) in response to Consultation Paper on Digital Copyright Issues (the Consultation Paper) published by the Departments of Canadian Heritage and Industry (the Departments) on June 22, 2001.
EXECUTIVE SUMMARY
Implementation of WIPO Treaties
1. Ratification and implementation of the WIPO Treaties is the only way to assure the level of international protection that is particularly essential with respect to the use of digital technology.
Making Available
2. The current Copyright Act may not already provide for a "making available" right and therefore this issue merits further consideration. The Act should be amended by adding a specific right of making available for owners of works and should also stipulate that a person who makes a work available does not authorize its communication to the public.
Technological Measures and Rights Management Information
3. Digital delivery offers many benefits for both rights holders and consumers, including ease of access (to content and to each other) and fast, inexpensive delivery.
4. Some users expressed concern that protection of technological measures will result in excessive prices and unfair business practices. Market forces cause rights holders to keep prices, terms of access and business practices fair, reasonable and competitive.
Legal Protection for Technological Measures
5. Circumvention devices and services must be prohibited, together with acts of circumvention. Otherwise protection of technological measures will be neither adequate nor effective.
6. Prohibited circumvention devices and services should be defined as those that:
* are primarily designed or produced to circumvent;
* have only limited commercially significant purpose or use other than circumvention; or
* are marketed for use in circumventing.
7. In order to address concerns with respect to access to works and subject matter in the public domain, anti-circumvention provisions should not apply to acts of circumvention that have the sole effect of gaining access to works and subject matter in the public domain.
New or Expanded Exemptions from Infringement
8. New or expanded exemptions for the benefit of educational institutions are not warranted. In fact, as digital technology will facilitate access, the Departments should consider restricting exemptions (that are not already so limited) to circumstances where authorization is not available.
9. The function of museums, archives and libraries is to preserve and facilitate access to works and other subject matter. At least with respect to cinematographic works, digital technology will encourage preservation by the rights holders themselves and facilitate easier access on a broad range of terms that will take into account (among other things) the characteristics of the user and the use. This should be borne in mind when considering the necessity for any new or expanded exemptions for these institutions.
Legal Protection of Rights Management Information
10. Protection for rights management information should not extend to information provided without the authorization of the rights holder. No further restriction on protection is warranted on the basis that some information may become out of date or that terms and conditions may not be applicable under Canadian law. Rights holders have an incentive to provide timely, accurate information.
11. The provision or distribution of false rights management information should be prohibited if done knowingly and with the intent to induce, enable, facilitate or conceal infringement, in accordance with the language in the Treaties.
12. Liability should require that the act be done with knowledge (or, with respect to civil remedies, with reasonable grounds to know) that it will induce, enable, facilitate or conceal an infringement or interfere with rights administration.
Remedies for Circumvention of Technological Measures and Interference With Rights Management Information
13. Appropriate civil actions should be available to any person injured by the unlawful circumvention of technological measures and interference with rights management information, with a range of equitable and monetary remedies similar to those available for infringement. The Courts should have discretion to reduce or remit damages in cases of innocent violations, where the violator was not aware and had no reason to believe the acts constituted a violation.
14. Circumvention of technological measures and interference with rights management for commercial advantage or private financial gain should be a criminal offence.
15. Public libraries, archives and educational institutions should be entitled to a complete remission of damages where they were not aware and had no reason to believe that their acts constituted a violation and such institutions should be exempt from criminal liability.
Liability of Network Intermediaries ("ISPs)
16. Amendments dealing with liability of service providers should include:
* a definition of "service provider,"
* descriptions of ISPs activities that will make it clear that certain activities infringe unless done with authorization from the rights holders, and
* conditions for eligibility for safe harbours limiting liability.
17. All of the questions posed by the Copyright Board in the SOCAN Tariff 22 Decision should be examined in the context of this review:
* What do "communication," "telecommunication," "public" and "[musical] work" mean in the context of Internet transmissions?
* When is a communication to the public effected on the Internet?
* Who effects communications on the Internet? In particular, who can benefit from Paragraph 2.4(1)(b) of the Act?
* When does the act of authorizing a communication on the Internet occur?
* When does a communication on the Internet occur in Canada?
18. Three additional questions should be added to this list:
* When does authorization of a communication to the public by telecommunication occur in Canada?
* When does making available occur in Canada?
* When does authorization to make available occur in Canada?
19. Safe harbours should limit liability (to injunctions in most cases), but only when ISPs and their activities qualify and obligations are met. Different safe harbours may apply to different activities, but in all cases an ISP should be required to:
* adopt and implement a policy of terminating the accounts of subscribers who are repeat infringers and to inform its subscribers of this policy; and
* accommodate (and not interfere with or accommodate interference with) standard technical measures (technological measures and rights management information) used by rights holders, that have been developed pursuant to a broad consensus of rights holders and service providers in an open, fair and voluntary multi-industry process, are available to anyone on reasonable nondiscriminatory terms, and do not impose substantial costs or burdens on service providers.
20. With respect to transitory communications (transmission and routing), ISPs should specifically be excluded from the "common carrier exemption," which does not deal with reproductions or provide for the availability of injunctive relief, both of which are necessary. Separate provisions should address liability and limitations on liability relating to transitory communications.
21. With respect to caching, limitations on liability should be available only to an ISP who
* Does not modify retained material,
* Limits users' access to material in accordance with conditions of access (e.g., password protection) imposed by the person who posted the material, and
* Removes or denies access to any material that was posted without the copyright owner's authorization on receipt of notice that the originating site (a) has removed, or disabled access to the material, or (b) has been ordered to remove or disable access to the material.
22. With respect to hosting and information location tools (hyperlinks, online directories, search engines, etc.) conditions for limitations on liability should only be available to an ISP who:
* Designates an agent to receive notice of claimed infringements,
* Expeditiously removes or denies access to material on receipt of proper notification of claimed infringement, or upon gaining knowledge of infringement or of facts or circumstances from which infringing activity is apparent, and
* Does not receive a financial benefit directly attributable to the infringing activity.
23. An ISP should be protected from liability for claims based on its having (in good faith) removed (or disabled access to) content, provided that it promptly notifies its affected customer and informs the customer that the material has been removed or access disabled.
24. Provision should be made to deal with the removal or disabling of access to the subscriber's material due to a mistake or misidentification of the material.
25. There should be appropriate penalties for anyone who knowingly materially misrepresents
* that material is infringing,
* that it is a rights holder, or
* (in a counter notice) that material was removed or access disabled through mistake or misidentification.
26. Rights holders and ISPs should be permitted (and encouraged) to contract out of provisions of the Copyright Act. However, the statutory provisions must be sufficient to ensure adequate protection for rights holders absent such agreements. Private agreements with ISPs cannot reasonably be expected to result in any significant augmentation of protection for rights holders.
DETAILED SUBMISSIONS
1. Hundreds of individuals and organizations responded to the Consultation Paper. Many of them fall into certain groups with shared concerns and positions:
* Rights holders (and rights holders' organizations) want an increased level of domestic and international protection for their works and other subject matter and for technological measures and rights management information.
* Individual users (and users' organizations) want to restrict limitations on access to digitized works resulting from protection for technological measures and rights management information.
* Institutional users' organizations want exemptions from liability for use of electronically-delivered digitized works and share the concerns of individual users about protection for technological measures and rights management information.
* Internet Intermediaries want limitations on their liability for infringement
2. In this Reply Submission, CMPDA makes particular reference to the following Submissions:
* AOL Time Warner Inc. ("AOL Time Warner")
* Bell Canada (including Bell Sympatico Internet service provider) and Bell Globemedia Inc. (including CTV Inc. and Sympatico-Lycos Inc.) on behalf of Aliant Inc., Bell ExpressVu LP, Bell Mobility Inc., Northwestel Inc., Télébec ltée. and Telesat Canada (the "Bell Group")
* Canadian Association of Internet Providers ("CAIP")
* Directors Guild of Canada ("DGC")
* Electronic Frontier Canada ("EFF")
* Intellectual Property Institute of Canada - Copyright Technical Committee ("IPIC Technical")
* Intellectual Property Institute of Canada - Policy Committee ("IPIC Policy")

Implementation of WIPO Treaties
3. Virtually all owners' organizations (including CMPDA) recommend that Canada ratify and implement the WIPO Treaties. Opposition from individual and institutional users is based largely on concerns about access and exemptions, which are discussed below.
4. Ratification and implementation of the WIPO Treaties is the only way to assure the level of international protection that is particularly essential with respect to the use of digital technology.
5. EFF submits that no amendments to the Copyright Act are necessary for Canada to ratify the WIPO Copyright Treaty. CMPDA replies that this is incorrect. For example (and in addition to the "making available" issue), Article 11 of the WCT specifically requires "adequate legal protection and effective legal remedies against the circumvention of effective technological measures" and Article 12 requires protection for rights management information, neither of which is provided for in the Copyright Act. To suggest, as EFF does, that remedies for infringement are effective remedies for circumvention of technological measures misses the point of technological measures in the first place.
6. As an example of the adequacy of existing provisions, EFF says, "The exclusive right to 'authorize' the exercise of any of a copyright owner's rights will continue to protect the interests of copyright owners against technology vendors who knowingly facilitate copyright infringement by third parties. As authority, EFF cites Canadian Cable Television Assn. v. Canada (Copyright Board). In reply, CMPDA says that generally technology vendors have not been found to have authorized infringement by third parties. In particular, although the case cited by EFF did say that a cable television company's transmission of a work to its subscribers was an authorization of a performance of the work in public by its subscribers, if not an actual performance in public by the cable company, a subsequent amendment to the Copyright Act (s. 2.3) has replaced that judicial determination and provides that
2.3 A person who communicates a work or other subject-matter to the public by telecommunication does not by that act alone perform it in public, nor by that act alone is deemed to authorize its performance in public.
Making Available
7. In its original Submission CMPDA made no proposals with respect to "making available," based on the statement in the Consultation Paper that the right to communicate to the public by telecommunication already includes making available to the public in such a way that members of the public may access works from a place and at a time individually chosen by them. However, based on numerous submissions (including those from IPIC Technical, IPIC Policy, and DGC), we believe that this issue merits further consideration.
8. Particularly significant is the Copyright Board's Decision in SOCAN Tariff 22, in which the Board found that making a work available on a web site does not, in and of itself, constitute communication to the public:
Those who argue that a work is communicated when it is made available, for example, by storing it on a host server where it can be accessed by members of the public, rely both on an international treaty and on Canadian court decisions.
They quote Article 8 of the World Intellectual Property Organization (WIPO) Copyright Treaty adopted in December 1996. It provides that the right to authorize the communication to the public of a work includes making it available in such a way that members of the public may access it from a place and at a time individually chosen by them. However, the Treaty is not binding in Canada since it has been signed but not ratified by the Canadian Government.
9. After considering and rejecting previous judicial decisions, the Board concluded, "Consequently, a work is not communicated when it is made available." [Emphasis added.]
10. In the opinion of the Board, works are not communicated on the Internet until they are accessed. However, the Board did find that "By making a work available to the public on a server, a person authorizes its communication." However, if this is so, who is so authorized? A person cannot authorize him/herself. The recipient, according to the Board, does not communicate, so needs no authorization.
11. For the purpose of clarity, CMPDA submits that the Act should be amended by adding a specific right of making available for owners of works and should also stipulate that a person who makes a work available does not authorize its communication to the public.
Technological Measures and Rights Management Information
12. Digital delivery offers many benefits for both rights holders and consumers, including ease of access (to content and to each other) and fast, inexpensive delivery. Technological measures combined with rights management information can allow users to choose the content they want to see and hear, the number of times they want to do so, decide whether or not they want to keep a copy and if so, for how long. Owners can offer free samples and discounts as incentives to potential licensees. This flexibility for owners and users all results from the use of technological measures and rights management information, but only if they are reliable and secure.
13. Technological measures and rights management information are vulnerable to circumvention by hobbyists and pranksters ("hackers") and professionals ("pirates"), who wish to steal from users, not just owners.
14. AOL Time Warner addressed users' concerns:
2.12 The immediate threat to the development of e-commerce and to the continued viability of copyright markets calls for prompt legislative intervention. The arguments for delay, in contrast, are based on legitimate but speculative concerns about negative consequences that could come to pass in a worst-case scenario. If works are available only in digital form; if all are encrypted; and if the encryption technologies do not build in appropriate access for lawful purposes, then the result could be to "imped[e] legitimate uses," (p. 24) and affect the policy balance in the Copyright Act. In a rational marketplace, it is improbable that this will happen. The vast majority of right holders are interested in maximizing the availability of their works, in a form that will meet widespread consumer acceptance, not locking them behind digital walls.
2.15 We do not believe that such protection would create a new or inappropriate right of access. In the traditional analogue environment, physical limitations have as a practical matter made it possible for right holders to prevent unauthorized access to their works. For example, consumers could not look at books without authorized access to bookstores or libraries; they could not watch movies in theatres without purchasing a ticket. The use of technological protection measures represents a means of recreating the effect that physical limitations had in the past. Just as the physical limitations were backed by legal sanctions, such as laws against trespass or breaking and entering, the technological protections need similar backing if they are to be effective.
15. Some users expressed concern that protection of technological measures will result in excessive prices and unfair business practices. CMPDA replies that market forces cause rights holders to keep prices, terms of access and business practices fair, reasonable and competitive. If any rights holder doesn't, its competitors will. Works protected by copyright must be original; therefore they are not interchangeable. However, the immense number and variety of works (including those in the public domain), and the ease with which creators can make their works available over the Internet, assures that no rights holder can establish a monopolistic position with respect to any type, or even genre, of work.
16. Digitally delivered content can be offered à la carte, like novels or movies, or by subscription to packages, like magazines, newspapers and cable TV. Content may be released according to a schedule, but available for consumption when the consumer chooses. The price consumers pay for access will most probably be influenced (as it already is for movies, for example) on how soon after release the consumer wants to have access and on whether or not they are willing to have the content packaged with advertising.
Legal Protection for Technological Measures
17. Individual and institutional users oppose protection for technological measures that would be directed at devices and services. In reply, CMPDA agrees with DGC's Submission:
A prohibition on conduct alone adds little to existing copyright protections and suffers from similar practical difficulties in enforcement. In the absence of a prohibition on circumvention devices and services, the only enforcement measure open to a rights holder is to detect individual acts of infringement and bring actions against the infringers. Given the unprecedented power of the Internet as a tool for widespread, private, difficult to detect, perfect, costless copying and dissemination of works, this approach would be neither adequate nor effective.
18. IPIC Policy's Submission includes similar views.
19. CMPDA submits that the interests of rights holders and users can be balanced by defining prohibited anti-circumvention devices and services as those that:
* are primarily designed or produced to circumvent;
* have only limited commercially significant purpose or use other than circumvention; or
* are marketed for use in circumventing.
20. Individual and institutional users (as well as the Departments) have expressed concern that prohibitions against acts of circumvention would prevent lawful access to works and subject matter in the public domain. CMPDA replies that anti-circumvention provisions should not apply to acts of circumvention that have the sole effect of gaining access to works and subject matter in the public domain.
New or Expanded Exemptions from Infringement
21. Submissions on behalf of educational institutions urge that new exemptions be created and that existing exemptions be extended to works and subject matter in digital formats and delivered by the Internet. CMPDA replies that, with respect to cinematographic works, a full range of appropriate exemptions already exists (at 29.4(2), 29.5(c), 29.6 and 29.7 of the Copyright Act). CMPDA further replies that no extension of these exemptions is necessary, as they already apply generally to communication to the public by telecommunication or permit unauthorized reproduction in technologically neutral terms.
22. These exemptions were granted largely on the basis that educational institutions could not obtain authorization in a timely manner. Technological measures and rights management information will facilitate authorization, particularly for large users such as educational institutions. CMPDA recommends that the Departments consider restricting exemptions (that are not already so limited) to circumstances where authorization is not available.
23. The function of museums, archives and libraries is to preserve and facilitate access to works and other subject matter. At least with respect to cinematographic works, digital technology will encourage preservation by the rights holders themselves and facilitate easier access on a broad range of terms that will take into account (among other things) the characteristics of the user and the use. This should be borne in mind when considering the necessity for any new or expanded exemptions for these institutions.
Legal Protection of Rights Management Information
24. Individual and institutional users have expressed concern about the reliability of the accuracy of rights management information, especially when it is likely to change over time or vary from one jurisdiction to another. CMPDA replies that protection should be restricted only so that it does not extend to rights management information provided without the authorization of the rights holder. In further reply, CMPDA refers to AOL Time Warner's Submission:
2.20 The fact that information may cease to be accurate over time should not affect this conclusion. The best guarantee of accuracy is the right holders' interest in ensuring effective licensing and payment, as well as reliable communication with their audiences. Moreover, the digital environment enhances the ability to provide constantly updated information, through the use of dynamic databases of identifying codes, which can be provided to users through references or links. In order to allay any concern, however, the legislation could make clear that the alteration of rights management information in good faith for the sole purpose of correcting inaccuracies would not be prohibited. (The treaties require that the prohibition extend only to acts performed "knowing, or . . . with reasonable grounds to know, that [the act] will induce, enable, facilitate or conceal an infringement.")
25. However, CMPDA does recommend that the provision or distribution of false rights management information should be prohibited if done knowingly and with the intent to induce, enable, facilitate or conceal infringement or interfere with rights administration.
26. In reply to concerns about liability for acts that are prohibited, but innocent or inadvertent, CMPDA recommends that such liability should require that the act be done with knowledge (or, with respect to civil remedies, with reasonable grounds to know) that it will induce, enable, facilitate or conceal an infringement or interfere with rights administration.
Remedies for Circumvention of Technological Measures and Rights Management Information
27. CMPDA maintains that appropriate civil actions should be available to any person injured by the unlawful circumvention of technological measures and rights management information, with a range of equitable and monetary remedies similar to those available for infringement. However, CMPDA recommends that the Courts should have discretion to reduce or remit damages in cases of innocent violations, where the violator was not aware and had no reason to believe the acts constituted a violation.
28. CMPDA further submits that circumvention of technological measures and interference with rights management information for commercial advantage or private financial gain should be a criminal offence.
29. Furthermore, CMPDA recommends that public libraries, archives and educational institutions be entitled to a complete remission of damages where they were not aware and had no reason to believe that their acts constituted a violation and that such institutions be exempt from criminal liability.
Liability of Network Intermediaries ("ISPs)
30. Submissions by Internet intermediaries have little to say about clarification of circumstances under which ISPs would be prima facie liable for infringement. CMPDA submits that it is essential to this exercise that amendments to the Act include
* a definition of "service provider,"
* descriptions of ISP activities that will make it clear that certain activities infringe unless done with authorization from the rights holders, and
* conditions for eligibility for safe harbours limiting liability.
31. All of the questions posed by the Copyright Board in the SOCAN Tariff 22 Decision should be examined in the context of this review:
* What do "communication," "telecommunication," "public" and "[musical] work" mean in the context of Internet transmissions?
* When is a communication to the public effected on the Internet?
* Who effects communications on the Internet? In particular, who can benefit from Paragraph 2.4(1)(b) of the Act?
* When does the act of authorizing a communication on the Internet occur?
* When does a communication on the Internet occur in Canada?
32. CMPDA recommends that three additional questions be added to this list:
* When does authorization of communication to the public by telecommunication occur in Canada?
* When does making available occur in Canada?
* When does authorization to make available occur in Canada?
33. In addition to considering the Board's reasons (and the outcome of the judicial review), it is also important to:
* Remember that the Board and the Federal Court of Appeal are applying the law as it is, not saying what it should be.
* Consider the arguments made by the parties, which may be raised again absent conclusive determination by the Supreme Court of Canada, and which, in and of themselves, may indicate where clarification of the law is required.
* Remember that the SOCAN Tariff 22 proceeding does not address reproduction rights.
34. CAIP proposes an unqualified exemption from liability with respect to transitory communications and caching in certain circumstances. Even with respect to hosting, CAIP propose only a "notice and notice" regime, with protection from liability conditional only on their forwarding notices of infringing material to their subscribers and removing that material (or disabling access to it) only in accordance with a court order. CMPDA replies that this proposal would provide benefits only to ISPs.
35. CMPDA notes that AOL Time Warner does not agree with CAIP's proposal:
3.7 It is particularly important in the area of copyright infringement to have a pre-judicial notice and take down procedure, instead of waiting for a court order to trigger the take down obligation (as would be possible under current law). The near-instantaneous nature of Internet communications, the high quality of digital copies and the ease with which users can make and transmit such copies, all make it urgent to remove infringing material online quickly. In the time it takes to prepare a lawsuit and obtain a court order, it may be too late to prevent substantial harm, as multiple unauthorized copies may already have been widely disseminated.
36. CMPDA agrees that safe harbours should limit liability (to injunctions in most cases), but only when ISPs and their activities qualify and obligations are met. Different safe harbours may apply to different activities, but in all cases an ISP should be required to:
* adopt and implement a policy of terminating the accounts of subscribers who are repeat infringers and to inform its subscribers of this policy; and
* accommodate (and not interfere with or accommodate interference with) standard technical measures (technological measures and rights management information) used by rights holders, that have been developed pursuant to a broad consensus of rights holders and service providers in an open, fair and voluntary multi-industry process, are available to anyone on reasonable nondiscriminatory terms, and do not impose substantial costs or burdens on service providers; and
37. With respect to transitory communications (transmission and routing), ISPs should specifically be excluded from s. 2.4(1)(b) (the "common carrier exemption"). The common carrier exemption does not deal with reproductions or provide for the availability of injunctive relief, both of which are necessary. Separate provisions should address liability and limitations with respect to transitory communications.
38. With respect to caching, limitations on liability should be available only to an ISP who
* Does not modify retained material.
* Limits users' access to material in accordance with conditions of access (e.g., password protection) imposed by the person who posted the material.
* Removes or denies access to any material that was posted without the copyright owner's authorization on receipt of notice that the originating site (a) has removed, or disabled access to the material, or (b) has been ordered to remove or disable access to the material.
39. With respect to hosting and information location tools (hyperlinks, online directories, search engines, etc.) conditions for limitations on liability should only be available to an ISP who:
* Designates an agent to receive notice of claimed infringements.
* Expeditiously removes or denies access to material on receipt of proper notification of claimed infringement, or upon gaining knowledge of infringement or of facts or circumstances from which infringing activity is apparent.
* Does not receive a financial benefit directly attributable to the infringing activity.
40. CMPDA agrees that an ISP should be protected from liability for claims based on its having (in good faith) removed (or disabled access to) content, provided that it promptly notifies its affected customer and informs the customer that the material has been removed or access disabled.
41. CMPDA recommends that a subscriber should have the opportunity to notify the ISP's agent and the rights holder that the subscriber's material was removed or access disabled through mistake or misidentification. In such a case, unless the rights holder files an action seeking a court order against the subscriber, the service provider should then be required to put the material back up within 10-14 business days after receiving the counter notification.
42. There should be appropriate penalties for anyone who knowingly materially misrepresents
* that material is infringing,
* that such person is a rights holder, or
* (in a counter notice) that material was removed or access disabled through mistake or misidentification.
43. CMPDA agrees with the Bell Group that rights holders and ISPs should be permitted (and encouraged) to contract out of provisions of the Copyright Act. However, CMPDA replies that the statutory provisions must be sufficient to ensure adequate protection for rights holders absent such agreements and that the provisions proposed by CAIP are not sufficient.
44. Furthermore, CMPDA replies that safe harbours cannot be provided in agreements between rights holders and ISPs. (Contracts between ISPs and their customers could create safe harbours, but market forces will tend to discourage their creation or enforcement. Contract law may also raise doubts about their enforceability in some cases.) Safe harbours can only be created by legislation, and only with respect to the performance of legislated obligations. Therefore, CMPDA submits that private agreements with ISPs cannot reasonably be expected to result in any significant augmentation of protection for rights holders.
45. CMPDA notes IPIC Policy's comment that "a notice and take-down system may be inconsistent with existing licensing practices and override exclusive rights." It would be useful if IPIC could expand on this statement.
46. IPIC Policy's Submission proposal that ISP liability be dealt with "in a fashion analogous to that set out under current subsections 27(2) and (3) of the Act."
47. CMPDA recommends that this approach, coupled with safe harbour provisions as outlined above, be examined closely.
Conclusion
48. Without content the Internet, like any other distribution technology, is an empty conduit. Without adequate protection for works and subject matter, the Internet will only deliver content that has no commercial value when delivered by more conventional, better protected means. This would not serve the interests of owners, users or intermediaries. Nor would it support Canada's digital agenda.
49. CMPDA looks forward to participating further in the process leading to ratification and implementation of the WIPO Treaties and addressing issues of ISP liability, which the Consultation Paper and the Submissions in response to it have begun.

All of which is respectfully submitted
The Canadian Motion Picture Distributors Association


Hon. Douglas C. Frith, P.C.
President