Delayed copyright law impeding notice-and-notice system for ISPs, providers say

OTTAWA—Uncertainty surrounding the future of Canada’s copyright law is impeding Internet service providers’ (ISPs) attempts to deal with infringing content online and is leading to a “cat and mouse game” in their pursuit of alleged infringers, ISPs told the House of Commons legislative committee on Bill C-32 Tuesday. Representatives from Rogers Communications Inc., Bell Canada, and Telus Corp. appeared before the committee, where they expressed their support for the bill’s proposal for a notice-and-notice regime for ISP liability. The system would require ISPs to forward notices about alleged copyright infringements from rights holders to Internet customers making the material available online. But under questioning from MPs Tuesday, ISPs tried to defend the effectiveness of a notice-and-notice system that hasn’t yet been passed into law. NDP MP and digital affairs critic Charlie Angus asked why telecom giants like Bell don’t appear to have standard requirements for rights holders’ notices or protocols in place to retain data about whether notices sent to alleged infringers are effective. “It’s been very much a cat and mouse game, unfortunately,” Suzanne Morin, assistant general counsel of legal and regulatory affairs at Bell, told the committee. She said ISPs have been working with rights holders to operate a voluntary notice-and-notice system for more than 10 years, but failed attempts at copyright reform have left some questions unanswered. “We’d very much like to get to a place where we can be processing them all, receiving them in a consistent fashion, and have a government fee schedule set up … It would have been nice if we’d had this discussion eight years ago and set it all up. We’d all be doing it right now,” Morin said. “We do hope to have a bill passed one of these days, soon, so that we can actually spend the money. You don’t spend money on the system when you don’t know what the rules are going to be.” Earlier attempts at copyright reform, in the forms of bills C-60 and C-61, died on the order paper due to an election in 2006 and prorogation in 2009, respectively. Although bills C-60 and C-61 also proposed notice-and-notice systems, Morin said the industry has not been sure about the rules, noting that there are new obligations in Bill C-32 that the ISPs support but do not practice. She pointed to C-32’s obligations on ISPs to confirm with rights holders that notices have been sent and to retain data about alleged infringers. “That’s not something we do today and it’s not something we’ve ever negotiated with the content owners,” Morin said. Liberal MP and industry critic Marc Garneau asked the ISPs to present data to the committee showing whether the notice-and-notice system is effective. The ISPs’ defence of a notice-and-notice system comes as some copyright groups, particularly those representing rights holders, continue to argue for a notice-and-takedown regime, which would require ISPs to remove allegedly infringing materials online identified by rights holders. Pam Dinsmore, vice-president of regulatory affairs at Rogers Cable, told the committee Tuesday that notices delivered to customers puts “the fear of God into” them. She said Rogers has the ability to track the number of notices sent to individual households, but does not track how many come from each rights holder. Dinsmore said that, generally, about five per cent of Rogers’ roughly 1.5-million Internet customers will receive a notice, and only about a third of those will receive a second notice. The number is again reduced by a third for households that receive a third notice, she said. “In our view, the notice-and-notice regime is effective at discouraging those who are alleged to have infringed—because they are only alleged—from infringing again,” Dinsmore said. “We think it does put the fear of God into them.” She added that, in 2010, the company processed 207,000 notices from rights holders. Morin told the committee that in 2010 Bell received more than 1 million notices and could not process them all. “We would have to fill a whole floor with individuals in order to process them all,” she said. “We haven’t automated that system as we wait to see what copyright legislation will bring our way.” Morin added that the number of notices is increasing over time with faster bandwidth speeds. Notices are not only Canadian, she said, and come from rights holders in Japan and Europe. Craig McTaggart, director of broadband policy and regulatory and government affairs at Telus, said the company does not retain any data about notices sent. He said Telus has privacy obligations to its customers and that the company does not retain any data for which it does not have a business case to do so. “Telus does forward close to 100 per cent of the notices we receive,” McTaggart said. “ we only forward the notices. We don’t retain any further data about how many messages were sent to us or to certain customers in a certain period.” Bloc Québécois MP and heritage critic Carole Lavallée asked whether ISPs could play a role in blocking access to content, but McTaggart said technological tools would make it easy for Internet users to circumvent blocking initiatives. “The very concept of blocking content runs so contrary to all of our Internet policy values that it’s just not something that’s really pursued,” McTaggart said. He referred to a 2004 Supreme Court decision, Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, for its section about the neutral role of ISPs. Angus also asked the companies about the use of deep packet inspection to manage content distribution online. Dinsmore said Rogers does not discriminate based on content types. “What we know within our pipes is what protocol is being used. But we don’t actually know the content that’s flowing through our pipes. We can’t tell whether the bits and bytes are music or whether it’s video,” she said. Dinsmore said the company can see whether peer-to-peer applications are distributing content and if so will “manage it on the upload.” She added: “We’re like a postman who delivers the envelope, but we don’t actually open the envelope to see what’s inside.” Bell, Rogers, and Telus said they support amendments to Bill C-32 that the Business Coalition for Balanced Copyright (BCBC) has put forward. The companies are members of the coalition, which proposed amendments to the bill at a meeting on Feb. 3, 2010. Dinsmore added at the meeting Tuesday that its supports a time-shifting exception in the bill to support the use of network personal video recorders on television services but called for “technical improvements” to the provision. sdoyle@thewirereport.ca

Delayed copyright law impeding notice-and-notice system for ISPs, providers say

Broadcast | March 22, 2011

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