Mark Goldberg


www.mhgoldberg.com





Fox Group Dispatch

Blatantly, overwhelmingly, or structurally engaged in piracy

Section 36 of Canada’s Telecom Act will be emerging from relative obscurity this week. It turns out that these 28 words puts the CRTC at the centre of defending intellectual property rights in a digital age.

  1. Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.

A broad coalition of Canadian artists, content creators, unions, guilds, producers, performers, broadcasters, distributors, and exhibitors has applied to the CRTC [pdf, 1.6MB] to deal with websites that offer pirated content. FairPlay Canada has proposed a new approach to deal with online piracy.

The coalition wants the CRTC to establish an new independent agency, the Independent Piracy Review Agency (IPRA), to identify websites engaged in promoting the theft of content. The proposal will disable access to websites and services that are “blatantly, overwhelmingly, or structurally engaged in piracy.” The application asks the CRTC to require Canadian Internet Service Providers (ISPs) to take measures to prevent these sites from reaching Canadians.

The IPRA and CRTC processes would be subject to oversight by the Federal Court of Appeal.

When a draft of the application leaked in December, some erroneously described the plan as an attack on net neutrality, perhaps hoping to capitalize on the publicity associated with the FCC’s Restoring Internet Freedom declaratory ruling. It isn’t.

Let’s be clear. FairPlay Canada’s Independent Piracy Review Agency proposal has nothing to do with net neutrality.

The CRTC’s net neutrality framework doesn’t specifically deal with blocking copyright infringing content. In its 2009 decision on internet traffic management practices (ITMP), the first leg of Canada’s net neutrality framework, the CRTC affirmed that blocking content by service providers would require Commission authorization in advance, as provided in Section 36 of the Telecom Act:

  1. The Commission finds that where an ITMP would lead to blocking the delivery of content to an end-user, it cannot be implemented without prior Commission approval. Approval under section 36 would only be granted if it would further the telecommunications policy objectives set out in section 7 of the Act. Interpreted in light of these policy objectives, ITMPs that result in blocking Internet traffic would only be approved in exceptional circumstances, as they involve denying access to telecommunications services.

The CRTC said that it would not use the ITMP framework to assess complaints about blocking, “as the matter is not one of discrimination or preference”.

Even Tim Wu has acknowledged that blocking certain kinds of internet content can be “clearly justified.” In his 2003 paper “Network Neutrality, Broadband Discrimination” [pdf], Tim Wu is credited with having coined the term net neutrality. In this paper, he recognized that one could define limits on users for certain types of applications or conduct.

At one extreme, many of the usage or application bans surveyed are clearly justified. For example, operators usually ban users from using applications or conduct that are meant to hurt the network or other users, like network viruses. It is true that this is a departure from network neutrality, because it disfavors a class of applications – those that are disruptive to the network. Yet, it is clear that the operator has acted to solve a problem of a negative externality – the costs imposed by one user on others. Few could or would argue that this is a bad thing.

Ultimately, this boiled down to “Broadband Users have the right reasonably to use their Internet connection in ways which are privately beneficial without being publicly detrimental.” The FairPlay Canada application is effectively asking the CRTC to make a determination about whether it is publicly detrimental for pirated intellectual property to be made available without authorization of copyright holders.

In 2005, the FCC adopted a policy statement [FCC 05-151] setting out principles “To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet”. Three of the four principles included ‘legal’ qualifiers. The first principle stated “consumers are entitled to access the lawful Internet content of their choice.” The second principle was “consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement” and the third stated “consumers are entitled to connect their choice of legal devices that do not harm the network.”

The FCC’s 2010 Open Internet principles also deal with illegal materials being transmitted:

The second principle said “consumers and innovators have a right to send and receive lawful traffic – to go where they want, say what they want, experiment with ideas – commercial and social, and use the devices of their choice. The rules thus prohibit the blocking of lawful content, apps, services, and the connection of devices to the network.”

In 2006, Canada’s Final Report, the Telecom Policy Review Panel explored this issue. In its prescient section on “Access to Internet Content and Applications”, the Panel said:

non-commercial reasons for blocking access could include legitimate legal prohibitions, for example, national security, child pornography or other criminal concerns. Restrictions on access might also arise because of copyright. In such cases, the Panel believes that blocking access would be legitimate because the access provider would merely be implementing the law.

As such, the Report developed its open internet recommendation with a specific carve-out for copyright:

Recommendation 6-5

The Telecommunications Act should be amended to confirm the right of Canadian consumers to access publicly available Internet applications and content of their choice by means of all public telecommunications networks providing access to the Internet. This amendment should

  1. authorize the CRTC to administer and enforce these consumer access rights,
  2. take into account any reasonable technical constraints and efficiency considerations related to providing such access, and
  3. be subject to legal constraints on such access, such as those established in criminal, copyright and broadcasting laws.

When a draft of the FairPlay Canada application leaked in December, some erroneously described the plan as an attack on net neutrality, perhaps hoping to capitalize on the publicity associated with the FCC’s Restoring Internet Freedom declaratory ruling.

So it is pretty clear: the FairPlay Canada proposal has nothing to do with net neutrality. There is nothing in the proposal that will “kill the internet.” There is no slippery slope. There is no attack on charter rights of expression.

The coalition’s proposal seeks to defend intellectual property rights and secure an environment that encourages creators to practice their craft in Canada. The proposal is long overdue, bringing Canada in line with many of our most important trading partners.

The coalition’s application to the CRTC attaches a legal opinion that confirms “Freedom of expression does not authorize the use of private telecommunications facilities to blatantly, overwhelmingly or structurally engage in piracy, and even if it did, the Proposed Regime is a proportionate exercise of discretion.”

In a recent blog post [and Globe and Mail Op-Ed), copyright and intellectual property expert Barry Sookman wrote:

At least 27 other countries — including leading liberal open democracies and major Canadian trading partners such as the UK, Australia, France, Spain, Portugal, Italy, Ireland, Sweden, Norway, Finland, South Korea, and Denmark – utilize website blocking. Numerous studies and court decisions have found it to be effective in combatting digital piracy.

Hugh Stephens recently highlighted a relevant observation in Shaw’s submission to the CRTC’s future of broadcasting distribution models consultation.

Shaw notes in its submission that there is a real possibility of a conflict between a court order against a website found to be enabling infringement and the CRTC’s administration of its own legislation.

“It would be a significant impediment to the future economic growth of Canada’s creative sector, as well as to the promotion and development of Canadian content and legitimate Canadian distribution platforms, if rightsholders were denied access to an effective tool to combat online piracy because the CRTC prevented ISPs from complying with a court order. It would also put Canadian ISPs (which both Shaw and Bell are) in the untenable position of either being in breach of a court order or in breach of section 36 of the Telecommunications Act”.

Shaw, which is not a member of the FairPlay coalition, makes an important point. As it stands, we could have a situation where a Canadian court issues an order to internet service providers that cannot comply because Section 36 of the Telecom Act requires CRTC consent. As Hugh Stephens suggests, “If the Telecommunications Act gives the CRTC the authority to order ISPs to block certain content, with or without a court order, why not deal directly with the body that has the power and authority? In a situation where an administrative body such as the IPRA was set up, this body would make recommendations to the CRTC which in turn would order ISPs to comply.”

FairPlay Canada’s proposal for IPRA envisions a broad-based independent Board. “The IPRA’s independence would be reflected in the fact that its Board of Directors would be nominated by its Members, rightsholders, ISPs, and consumer advocacy and citizen groups, with no single stakeholder group having a controlling position.”

The FairPlay Canada coalition is composed of organizations from Canada’s film, TV, radio, sports entertainment and music industry. Software development companies and various information technology associations should share a common interest as this application works its way through the CRTC. Those who are concerned about Canada’s place in a global digital economy have to be concerned about defending their ability to protect and defend intellectual property rights.

FairPlay’s proposal, targeting websites and services blatantly, overwhelmingly, or structurally engaged in piracy, merits serious consideration. And it should be one of the interesting topics to be discussed for the Regulatory Blockbuster at The 2018 Canadian Telecom Summit, taking place June 4-6 in Toronto.

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