Government formalizes ‘notice-and-notice’ copyright regime

A “notice-and-notice” copyright regime — under which Internet service providers (ISPs) will be legally required to notify customers about copyright infringement complaints brought to their attention by rights holders — will come into force in January 2015, the government said Tuesday. A press release issued by Industry Minister James Moore and Heritage Minister Shelly Glover said the system “formalizes a voluntary practice aimed at discouraging online copyright infringement, provides copyright owners with a tool to enforce their rights, and respects the interests and freedoms of users.” It is the last provision of the government’s Bill C-11 to come into force, following a consultation process. Barry Sookman, a copyright expert and partner with McCarthy Tetrault in Toronto, said that having the notice-and-notice regime legislated in the Copyright Act means more entities will participate. “It won’t only be the major ISPs who had been doing notice-and-notice, but this will now apply to a large variety of entities. … It will apply to ISPs others who provide services in relation to the Internet. It will apply to hosting providers, and it will apply to search engines,” he said in phone interview. “And it will apply to even those entities who are ISPs who hadn’t been doing it previously. So it is important.” University of Ottawa law professor Michal Geist said in a phone interview that the new regime won’t change things very much for Internet users, rights holders and most ISPs, since the same system has been place voluntarily for the last decade. “ISPs will have to ramp up their systems to ensure they can follow through, because they were doing it more on a best efforts basis in the past,” he said. “Rights holders have been sending these notices, ISPs have been forwarding them as they can and users have been receiving them, so this just sort of formalizes that now.” Tom Copeland, founder of southern Ontario ISP Eagle.ca and chairman of the Canadian Association of Internet Providers, said in a phone interview it was surprising that the government wanted to codify a system that has already been in place for years. “It was an easy thing for the government to do and claim to be getting results from, even though it wasn’t necessary,” he said. He said he doesn’t think following the new regime will be an “onerous task” for ISPs, nor does he expect to see a significant increase in the number of notices ISPs receive from copyright holders. “There shouldn’t be an added burden to our day-to-day operations,” Copeland said. Telus Corp. spokeswoman Jacinthe Beaulieu said in an email Tuesday that the notice-and-notice system “strikes the appropriate balance between customer privacy and protection of intellectual property.” Rogers Communications Inc. spokeswoman Patricia Trott said in an email Rogers “has followed the process outlined in the regime on a voluntary basis for years and we will continue to do so.” Copeland said the notice-and-notice system was a compromise between the different sides. “We had to find some middle ground that would not infringe on the rights or privacy of users, but at the same time allowed rights holders to protect their intellectual property,” he said. Richard Pfohl, a lawyer for Music Canada, said the notice-and-notice system was not a compromise, but was “the only thing the ISPs would agree to.” He said Canada should be looking at “more effective means” to deal with copyright infringement. OpenMedia.ca executive director SteveAnderson said the approach was a “balanced” one, though he noted the rules put in place could be supplanted by the agreements on copyright reached during Trans Pacific Partnership negotiations. He said he was concerned the costs of sending the notices could be passed onto customers. “There’s no established costing spelled out for that, so what looks like will happen if they don’t change this is the ISPs will have to incur the costs of sending these notices, and those costs are then passed onto Internet users,” he said, adding that not having the accusers responsible for the costs could open the door to frivolous claims and abuse. Howard Knopf, a copyright lawyer with Macera & Jarzyna LLP in Ottawa, also brought up the costs and said the system could have unintended consequences. “If I’m right, and I kind of hope that I’m not, we have potentially a perfect storm of mass litigation and trolling activity shaping up,” he said. Knopf cited the precedent recently set in Federal Court in the VoltagePictures LLC and TekSavvy Solutions Inc. case, in which the ISP was ordered to give information on its subscribers to a production company, and to provisions regarding voluntary disclosure by telecoms found in Bill S-4, or the Digital Privacy Act. He said an unintended consequence of the new legislation could be that ISPs could get paid for voluntarily handing over information about subscribers who are allegedly infringing copyright. “The so-called copyright owners could then go to the ISPs and say, ‘Look, we know you can’t charge us for the notices, but we know you have to go to some trouble here. Under Bill S-4, you are allowed to voluntarily disclose to us the information about these subscribers,’ ” he said. The copyright owner could make a deal with the ISPs to be financially compensated for handing over that information, he said. “There could be all kinds of possibilities for anti-consumer behaviour here that would totally go under the radar of the courts,” he said. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Derek Abma at dabma@thewirereport.ca

Government formalizes ‘notice-and-notice’ copyright regime

News | June 17, 2014

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Government formalizes ‘notice-and-notice’ copyright regime

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