ARCHIVED — A CCTA2

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 Cable Television Association (CCTA) received on October 29, 2001 via e-mail

Subject: Copyright-Droitdauteur

PDF Letter, 79 KB
PDF Comment, 24 KB

October 29, 2001

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

Dear Sir or Madam:

Please find enclosed the reply comments filed today by the CCTA in response to submissions on the "Consultation Paper on Digital Copyright Issues". The CCTA has no objection to this submission being made available to the public on the departments’ web sites.

Do not hesitate to contact me if you have any questions.

Sincerely,

Janet Yale
President & CEO

encl.

 

Consultation Paper

on Digital Copyright Issues

 

 

Reply Comments

 

Submitted by the

Canadian Cable Television Association

October 29, 2001

 

 

Introduction

1. These comments are provided by the Canadian Cable Television Association ("CCTA") in reply to comments s ubmitted to the Consultation Paper on Digital Copyright Issues, issued by Industry Canada and Canadian Heritage ("the departments") on June 22, 2001.



2. CCTA has replied specifically to the comments provided by the Canadian Association of Internet Providers ("CAIP"); the Bell Companies; Telus; IBM; the Canadian Broadcasting Corporation ("CBC"); the Canadian Chamber of Commerce; the Information Technology Association of Canada ("ITAC"); the Writers Union of Canada ("TWUC"); Intellectual Property Institute of Canada ("IPIC"); CANCOPY; AOL Time Warner; the Canadian Association of Broadcasters ("CAB"); SOCAN; and the Canadian Recording Industry Association ("CRIA").



3. The fact that the CCTA has not chosen to reply to certain submissions should not be regarded as either agreement or disagreement with those comments.



4. The CCTA notes the hundreds of submission filed by individuals who urge the government not to use the Digital Millennium Copyright Act ("DMCA") as a model for amendments to the Canadian Copyright Act. These submissions points out many of the difficult issues raised by some of the DMCA’s more controversial sections. The CCTA recommends that the government take note of the concerns expressed in these submissions.



5. The CCTA will focus its reply comments on the issue of intermediary liability, which is the area of primary concern to our members. However, the CCTA continues to support the positions expressed in our original submission, filed September 14, on the issues of a proposed making available right, technological protection measures and rights management information.




Intermediary Liability

6. CCTA agrees with and supports the submissions of CAIP, the Bell Companies, Telus, IBM, the CBC, the Chamber of Commerce, and ITAC on the issue of intermediary liability and on the inappropriateness of a complaint-driven notice and takedown procedure. We further agree with those parties who suggested that the government should incorporate the findings of the Copyright Board in the SOCAN Tariff 22 (Phase 1) decision and should extend the application of the common carrier exemption to all protected material and for all existing rights and any new rights.



7. CCTA disagrees with CRIA and CANCOPY that the issue of intermediary liability is not a priority and can wait until other issues are resolved. As we stated in our original submission, resolving the issue of ISP liability is fundamental to the development of a robust network-based economy in Canada and must be dealt with during the current round of proposed amendments to the Copyright Act. We agree with the observation by the Bell Companies that "the ability of ISPs to provide on an competitive basis the facilities and services necessary for the wide range of content will, in part, depend on how liability rules for all content, including copyright protected content, affect the cost of their businesses." The CCTA supports the need to clarify the issue of liability.




Intermediaries do not Control Content

8. The CCTA disagrees with SOCAN’s submission that ISPs should be responsible for the communication of copyright protected works to their customers. The Internet, by design, is an end-to-end communication system that limits the ability for intermediaries to control the content of data that is communicated. The end user who intentionally transmits content to other end users is the only one who is "communicating" that content, just as two people who are speaking on the telephone are communicating with each other and not with the telephone company, or someone who sends a letter communicates with the recipient of that letter and not with the post office.



9. Imagine the impact on the postal system if we required the post office to open and inspect each piece of mail to ensure that it did not contain unauthorized reproductions of copyright protected materials. In addition, consider the increased cost of postal services if the post office was obliged to pay for blanket licences to compensate authors, publishers and photographers for the right to deliver mail containing protected material, whether or not copyright protected material was actually being delivered.



10. In practice, the Internet is analogous to a postal system. Each file that is transmitted across the Internet is broken down into a number of very small "packets". Each packet of data that is transmitted contains a tag that indicates the packet’s final destination, but does not identify the contents of the packet or the type of file being transmitted. This tag functions much the same as the address on the outside of a sealed envelope that provides only enough information for the post office to effect delivery of the letter. When a router maintained by an ISP receives a packet it checks to see where the packet is headed, calculates the next best step in the journey, and sends the packet on its way. At no point does the router check to see what kind of data the packet contains. Its function is to keep packets moving as efficiently and as quickly as possible.



11. The CCTA agrees with IBM that many rights holders seem confused over the functions performed by ISPs and that the confusion stems from a lack of clear understanding of current technology and the ability to control, monitor and ensure that content is removed, blocked or access is controlled.




Rights Holders are Seeking Targets to License

12. Those parties who argue that the government should amend the Copyright Act to impose copyright liability on ISPs cite two general grounds, neither of which have any basis in a principled approach to copyright law. First, some rights holders, such as CRIA, claim that there is a need to manufacture ISP liability where none exists to create "incentives for cooperation between copyright owners and service providers in detecting and dealing with on-line piracy." Other rights holders, including CANCOPY, TWUC and SOCAN, support the imposition of liability on ISPs so that they can issue blanket licences to ISPs and secure a source of revenue without having to identify those individuals who actually use copyright materials in the Internet environment.



13. TWUC even goes so far as to suggest that the imposition of a notice and takedown procedure should not necessarily limit the liability of ISPs because any such limitation would reduce the incentives for ISPs to negotiate licences with copyright collective societies. TWUC’s only justification for suggesting that ISPs should bear such liability is its statement that "providers of infringing content are frequently unreachable or reachable only at prohibitive cost."



14. CCTA submits that TWUC’s submissions are flawed and not based on a principled approach to copyright law for a number of reasons. First, TWUC admits that it wants to impose liability on ISPs, not because ISPs are actually engaged in infringing conduct, but because ISPs are more convenient to licence than the people who are actually committing the infringement. Second, contrary to TWUC’s assertion, Canadian content providers who infringe are not "unreachable"; the Copyright Act already provides the wide injunctive relief necessary for a copyright holder to obtain a court order compelling a Canadian ISP to take down infringing material and provide the identity of the subscriber who is the alleged infringer. Third, the cost of prosecuting a copyright infringement claim against a defendant who infringed using the Internet is not necessarily more or less prohibitive than the cost of launching an infringement suit that does not involve the Internet. Furthermore TWUC does not provide any justification as to why the cost of suing an ISP who has not infringed but has been made liable under the Act would be less than the cost of suing a content provider who has actually infringed.



15. CANCOPY appears to be just as eager as TWUC to secure a new source of licence revenue from ISPs without any regard for the lack of any legal or rational foundation for such claim. CANCOPY even goes so far as to suggest that the government should create a new type of secondary infringement that would make ISPs explicitly liable for acts performed by subscribers on the theory that ISPs grant their subscribers "permission" to reproduce and disseminate works without the authorization of rights holders.



16. CANCOPY suggests that ISPs are analogous to theatre owners and relies on subjection 27(5) of the Copyright Act to support its request for a new type of secondary infringement based on "permission". This argument suffers from at least two fundamental defects. First, subsection 27(5), like subsection 27(2) which creates other types of secondary infringement, requires an element of knowledge. There is no infringement of copyright under subsection 27(5) where the owner of the premises was not aware, and had no reasonable grounds to suspect, that the performance would be an infringement of copyright.



17. ISPs have no knowledge of all of the specific works that are being communicated by their subscribers or transmitted across their facilities. The very nature of Internet transmission ensures that intermediaries are not aware and have no reasonable grounds to suspect that any specific transmission will result in an infringement. It is not enough to says that since there is copyright infringement on the Internet, then all ISPs have to assume that all communication between their subscribers and others involve potential infringement. The knowledge required to find someone liable for secondary infringement must be specific to a particular act and a particular work. As described above and in our initial submission, ISPs do not possess this knowledge and cannot obtain that information in any manner that would allow the Internet to continue to function in a reasonable fashion.



18. Unlike an ISP, a theatre owner is able to make inquiries prior to a performance as to whether all necessary rights have been cleared. The owner can obtain indemnity from the performer, or can contact the rights holder to verify that performance rights have been cleared. The facilities maintained by Canadian ISPs, on the other hand, are constantly processing millions of packets of data, a small number of which may be received by the ISP’s own subscribers but the majority of which will be passed along to another router. The ISP has no advance knowledge of the data that is about to travel across its facilities, no opportunity to evaluate the data to see if it contains a fragment of a copyright protected work before it has to be passed on, and no way to verify the copyright status of any fragments of works being transmitted.



19. CANCOPY’s second fundamental flaw is its assumption that ISPs "permit" their subscribers to infringe. Most Canadian ISPs have acceptable use policies that make it quite clear to subscribers that the use of the ISP’s facilities for any illegal purpose, including copyright infringement, is not acceptable. Often, there will be specific sanctions against a subscriber if illegal activity is proven. Therefore, contrary to CANCOPY’s assertions, ISPs prohibit and do not permit subscribers to infringe copyright.



20. It is clear from the comments by TWUC and CANCOPY that these organizations want the government to impose copyright liability on ISPs so that they can hold ISPs hostage by charging licence fees for the transmission of material over which the ISPs have no knowledge and no control.



21. CCTA submits that the desire by rights holders to have a convenient target for rights enforcement efforts and a source of licensing revenue does not justify the imposition of liability on ISPs in the absence of any principled reasons for doing so. The CCTA further submits that imposing such an unreasonable and unmanageable burden on the ISP industry threatens the rollout of high speed Internet access to Canadian in all regions of the country.



22. We agree with the Bell Companies that the threat of copyright liability may effect investment in Internet services and may lead ISPs to impose unduly restrictive requirements on their customers or result in web sites being taken down or access to content blocked where there is no certainty that the material in question infringes copyright.



23. CCTA believes that AOL Time Warner accurately described the difficulties of applying existing standards to the Internet environment when it observed that:




Applying the ordinary standards of direct strict liability or secondary liability to service providers for the infringements of third parties on the Internet is not realistic in light of the specific characteristics of Internet communications. These include, in particular, the automated dissemination and copying of third party material that is inherent in the technology of certain service provider functions, the massive volume of communications that are posted to and traverse the Internet; and the fact that Internet sites that a service provider hosts or links to typically change without notice to the service provider. All these factors make the problem of liability for the infringements of third parties on the Internet very different from the liability of a bookstore owner or a dance hall operator for an infringement that occurs on its premises. This leaves the service provider open to an uncertain an unpredictable application of the law as well as potentially ruinous financial exposure.




24. We would note that the Copyright Board has already undertaken a comprehensive and thorough examination of the issues related to the liability of ISPs for copyright infringement and ruled that ISPs should not be liable for the communication by telecommunication of musical works when merely performing the functions of an intermediary. In making this finding, the Board chose not to accept SOCAN’s argument that ISPs should be liable so that SOCAN would have a convenient target group for its proposed blanket licence.



25. CCTA urges the government to follow the Copyright Board’s example by taking a principled approach to the issue of ISP liability and amend the copyright act to explicitly exempt ISPs from liability for copyright infringement where they are merely providing access, hosting, caching, and transmission services.



26. The CCTA disagrees with CRIA’s suggestion that taking such a principled approach to the question of ISP liability would remove any incentive for ISPs to cooperate in the fight against piracy. This assertion ignores the fact that major ISPs, including those represented by CCTA and CAIP, have already taken an active role in addressing the issue of copyright infringement on the Internet by complying with the voluntary "notice and notice" regime developed by CCTA, CAIP and CRIA.



27. The CCTA notes the observations by CAIP and the Bell Companies that the notice and notice procedures successfully resolve anywhere between 70% and 100% of the copyright-related complaints received by individual companies.



28. The CCTA notes that these ISPs are making this significant contribution despite the fact that there has not been a single court decision that has found an ISP liable for copyright infringement in Canada. In fact, to our knowledge, there has not been any copyright infringement suits brought against any ISP in Canada. Therefore, CCTA submits that it is disingenuous for CRIA to suggest that ISPs will not assist rights holders in dealing with infringement unless the Copyright Act creates liability.



29. Furthermore, CCTA, CAIP, Bell, and Telus have all recommended that the Copyright Act should be amended to incorporate an obligation on ISPs to adhere to the notice and notice regime that has been voluntarily implemented by a majority of the industry. There is also broad support by ISPs for the need to provide expedited access to injunctive relief to deal with potentially infringing material on the web, including the availability to rights holders of court orders requiring the removal of such content. These positions further discredit CRIA’s claim that imposing liability on ISPs is the only response to copyright infringement on the Internet. Clearly, the ISP industry in Canada has shown that it is committing to contributing to the effort, and will continue to do so.



30. The CCTA agrees with the IPIC Copyright Technical Committee that the approach to ISP liability in the copyright context should take into account the treatment of intermediary liability in other areas of the law. For instance, we note CAIP’s observation that the Canadian Parliament has recently introduced two bills to deal respectively with the issues of child pornography on the Internet (Bill C-15A) and hate propaganda (Bill C-36). Each piece of proposed legislation establishes a judicially-ordered take-down regime for the offensive content that is being addressed. CCTA submits that there is no public policy reason to set a lower standard of notice for copyright infringement than for child pornography or hate propaganda.




Discussion of a Broadcasting Right is Premature

31. CCTA disagrees with the CAB’s suggestion that any amendments to the Copyright Act should include an exclusive broadcast signal right. First, the CCTA fails to understand how the CAB can, on the one hand, suggest the government should not undertake the Copyright Act amendments that would be necessary for Canada to ratify the WCT and WPPT, which were signed in 1997, then, on the other hand, suggest that Canada should recognize an exclusive broadcast signal right when WIPO negotiations on a proposed Broadcasting Right Treaty have not yet concluded. CCTA submits that it would be more appropriate for Canada to meet its existing international obligations before it spends any effort considering new treaty obligations that don’t exist yet and may never exist.




Conclusion

32. In conclusion, CCTA does not believe that any of the comments submitted to the Consultation process establish a principled legal basis for making ISPs liable for copyright infringements committed by third parties. As CCTA stated in its initial comments, we recommend that the government follow the decision of the Copyright Board in the SOCAN Tariff 22 (Phase 1) decision, and extend the existing common carrier exemption to the operation of ISPs and extend the exemption to cover all existing and new rights.



33. The CCTA appreciate the opportunity to provide these comments. We look forward to submitting reply comments once we have reviewed the submissions from other parties.