Website blocking has potential to combat piracy, conference hears

OTTAWA — If BCE Inc.’s suggestion in September that the federal government should consider blocking websites that host infringing material to fight content piracy was outlandish for some, it wasn’t for some presenters at a communications lawyers’ conference Tuesday, as the issue came up throughout the day. “I do think there’s a lot of potential for — wait for it — site blocking, and the government needs to intervene and help us out on that,” Erin Finlay, chief legal officer at the Canadian Media Producers Association (CMPA), told a crowd at the 15th annual International Institute of Communications conference in Ottawa. The two-day conference, which began Tuesday, is discussing new developments in communications law and policy. Finlay was part of a six-member panel that was discussing the key issues in the government’s imminent five-year review of the Copyright Modernization Act, which was initially projected to begin last week. Finlay, in particular, was addressing a question from the audience about what a solution or a middle ground between Canada’s notice-and-notice system and the United States’ notice-and-takedown system looks like. Stephen Zolf, a lawyer at Aird & Berlis LLP and moderator of the panel, prefaced the discussion by noting that the views and opinions expressed on the panel are those of the individuals and not of their organizations or clients. The comments follow what some in the industry considered to be an odd suggestion from Bell’s Robert Malcolmson when he appeared in front of parliamentarians studying a renegotiation of the North American Free Trade Agreement (NAFTA) nearly two months ago. But at a later panel on Tuesday afternoon, Thomas Sutton, a partner at McCarthy Tétrault LLP who was presenting a paper from his colleague Richard Lizius, pointed out site-blocking happens in other jurisdictions that “have a lot of commonality with Canada,” such as the United Kingdom. He added that the experience in Europe, including in countries such as Germany and Spain, shows the effect site-blocking has had on internet piracy. In November 2014, in the U.K., for example, courts ordered internet service providers (ISPs) to disable access to 53 piracy sites, which resulted in a 90 per cent reduction in visits to those sites, a 22-per-cent reduction in piracy overall in the surveyed area, and an increase of between six and 10 per cent in visits to legal streaming sites. “Site-blocking is reasonable and proportionate,” Sutton argued. He brought up the experience of the music industry, which he argued saw piracy decrease not only because of emergence of new online options for obtaining music but also because of a response to copyright infringement. “We need to have an ecosystem where, to the extent that there rights in that content, to be protected, and if we need to come up with new methodologies to protect those rights, I think we have to adapt along with the technology to protect them,” he said. “At the end of the day, rightsholders need remedies.” However, Ariel Katz, associate professor and innovation chair of electronic commerce at the University of Toronto’s faculty of law, argued that one way to combat piracy is to lower prices, which will lead to more people getting their content through legal means. If companies only have to lower prices a little, so that total amount they’re making only drops slightly, “that’s a problem for them. But for society, that’s actually not a problem at all,” Katz argued. Providing content at a price where the profits stay nearly the same but a larger number of people can access content legally “is actually the optimal solution from society’s perspective. Not from the service providers’, necessarily.” Bram Abramson, the Ford-Mozilla open web fellow at the University of Toronto’s Citizen Lab, said that while he wouldn’t call ISP blocking “the devil... I do say that it’s a bit of a nuclear bomb option.” It’s an expensive thing to implement, he noted, adding that companies often haven’t engineered “that kind of architecture of control” into their networks. It’s also not a solution to all forms of piracy. “When you talk about peer-to-peer and BitTorrent and all of this, it was literally created to make things like ISP site-blocking impractical,” Abramson noted. There are less invasive and less expensive measures that can be taken instead, he added, such as search-engine delisting. Abramson also said that there are many ISPs in the Canadian market who would have to block the sites. “We have seven or eight ISPs that have about 87 per cent of market share. So do you ask only them to do it? Do you ask all of them to do it? What about the other I-don’t-know-how-many dozen ISPs that represent the remaining 13 per cent?” The efficacy of Canada’s notice-and-notice system was also a subject for debate Tuesday. Implemented in 2015, Canada’s notice system requires ISPs to notify subscribers if they are being accused of copyright infringing activity. In contrast, the U.S.’ own system requires the removal of the infringing material upon notice by the rights holder. In the morning session, the discussion pitted Finlay and Carys Craig on the state of the notice-and-notice system and whether it is a sufficient method to combat piracy, which Malcolmson told the committee made a home in Canada. Craig, who is an associate dean of research and institutional relations and professor at Osgoode Hall Law School, asked what the alternative for the system would be. “I think if we were to look at the notice-and-takedown regime, I’d very much doubt you would say, ‘well that has been absolutely successful in limiting piracy,” Craig said. About Canada's notice system, she noted that “there is no better alternative, and I think where Canada has landed, is a very measured response.” She added the government must now think “more carefully about sanctions for misuse” of the system due the lack of regulations governing what goes inside the notices. But Finlay disagreed with the adequacy of the system, suggesting that it hasn’t had a real impact on piracy rates in the country. “I think the notice-and-notice regime is, as we’ve always said, leading into reform,” Finlay said. And while she said the system is an effective tool for educating users, “it’s not an effective tool against piracy...I think that’s a big, fat question we need to take a look at and whether we need some strengthening in the Act there.” In March, The Wire Report reached out to several experts to see whether the notice-and-notice regime has had any tangible effect on piracy rates in Canada, but conclusions remained elusive. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and reporting and editing by Anja Karadeglija at akarad@thewirereport.ca

Website blocking has potential to combat piracy, conference hears

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Website blocking has potential to combat piracy, conference hears

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