Beanfield Technologies

VIA E-MAIL: <copyright-consultation-droitdauteur@canada.ca>

Marketplace and Legislative Policy Directorate
Broadcasting, Copyright and Creative Marketplace Branch
Department of Canadian Heritage

Copyright and Trademark Policy Directorate
Marketplace Framework Policy Branch
Innovation, Science and Economic Development Canada

RE: Consultation on a modern framework for online intermediaries

31 May 2021

Sir, Madame,

1. Beanfield Technologies Inc., which operates as Beanfield Metroconnect (“Beanfield”), is a facilities-based telecommunications carrier with more than 4000 route-kilometres of fibre in and between Toronto, Ottawa, and Montreal. 
2. We employ more than 300 Canadians, and have been in business as an independent, Canadian-operated provider since 1988. Following the 2019 financial investment of Digital Colony, the global digital infrastructure investment platform of Colony Capital, Inc., Beanfield accelerated its investment in Canadian telecom facilities and, today, operates among the largest independent fibre optic networks in Toronto and in Montreal.
3. We understand that you have launched a brief “Consultation on a Modern Copyright Framework for Online Intermediaries” with associated consultation paper (together, “Consultation”). We have further learned that by “online intermediaries”, the Consultation refers to a grab-bag of types of digital actor,
   • including telecommunications common carriers supervised under the Telecommunications Act, yet
   • excluding financial intermediaries and payment providers that are accessed online, and that are subject to detailed regulation precisely to ensure that they are not vehicles for intermediating illicit activity.
4. We note, in this regard, the Consultation’s description of net neutrality as a principle “by which intermediaries (sic) must treat all online communications within the boundaries of the law.”
5. Beanfield is deeply concerned that the Consultation is engaged in hasty and under-informed revisions to Canadian telecommunication policy, an area that does not relate to most “online intermediaries” and which appears to reside outside the expertise of the Consultation’s conveners. However, recognizing that statutory reform will ultimately be necessary in view of the overreach of subsection 34(1) of the Copyright Act, as demonstrated by the GoldTV cases which resorted to novel ISP-blocking orders without even entertaining less intrusive measures, Beanfield makes three recommendations for statutory reform. One relates to a more responsible scope for subsection 34(1) itself. The other two relate to the proposed statutory scheme by which the Copyright Act would wade more deeply into telecommunications policy, by clarifying the required criteria and by providing for Guidelines-driven dialogue between the CRTC and courts.

B. “Online intermediaries” is over-inclusive

6. Beanfield understands that the Consultation’s goal is to protect and encourage the use of copyright-protected content online, safeguard individual rights in an open Internet, and uphold a flourishing digital market.
7. Beanfield respects and endorses these goals, but are deeply concerned by the Consultation’s description of “net neutrality” as a “principle … by which intermediaries must treat all online communications within the boundaries of the law”. This embeds two fundamental errors.
8. By way of background, the telecom policy of net neutrality is of utmost important to Beanfield and the customers we serve. As our residential-facing site indicates:

   We believe in net-neutrality

   Beanfield is 100% committed to keeping the Internet open and fair. We will never prioritize, or throttle traffic on our network for competitive reasons. Ever. We are small, and our influence is limited but we will fight the good fight as hard as we can.

9. The Consultation’s description does not correspond to “net neutrality”, as there are two fundamental problems with it and the approach underwriting it.

   Network neutrality without networks

10. First, the description refers to network neutrality as a principle binding “intermediaries”, a broad category into which the Consultation pours both telecommunications common carriers regulated by the Telecommunications Act, on one hand; and on-net servers and applications, like hosting and caching providers or search engines, on the other.
11. This is, with respect, a category error.
12. Telecom carriers are a substrate that underlies logical networks like the Internet. They are bound by ancient common law as common carriers, and subject the world over to specialized telecommunications legislation that helps safeguards that role, such as is encoded by section 36 of the Telecommunications Act. 
13. On-net servers and applications are not common carriers, and not subject to such legislation. They may well have special roles on the Internet, just as different railroad cars may have different utility roles on a train. But a special intermediary role on the Internet does not transform a search engine or Web host into a telecom network, any more than an engine car or caboose are transformed by their usefulness into railway tracks.
14. This distinction matters because failing to attend to it elides the very real differences between making enforcement deputies of the on-net intermediaries proximate to infringing content, on one hand, and of the underlying telecom access providers that are more distant from it, on the other.
15. Contrast, in this regard, the Consultation’s version of network neutrality without networks, which brooks little distinction between telecom and the various and different non-telecom services, to the European Union’s Open Internet Directive. That Directive first, carefully, defines an Internet access service (“a publicly available electronic communications service that provides access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used”). It then goes on to describe the responsibility of Internet access service providers—the telcos that are common carriers—in that context, before moving on to derogations and exceptions:

    Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used.^{Footnote 1}

16. Providers of Internet access services are, in this regard, contrasted to “providers of content, applications and services”—none of which is, in turn, reducible to one another, but all of which reside on the Internet platform made possibility by net neutrality.
17. Should the Consultation wish to propose statutory revisions relating to telecommunications policy, its evacuation of that policy altogether by way of collapsing together on-net and telecom intermediaries is a poor start.

    Within the boundaries of the law

18. Second, the description refers to net neutrality as being concerned with the neutral treatment of communications traffic “within the boundaries of the law”.
19. Providers of Internet content, applications, and services no doubt engage in the processing and manipulation of content as part of their activities. We assume that this is the context in which the Consultation refers to their ability to know which activities are “within the boundaries of the law”.
20. The activity of providing telecommunications network services, on the other hand, does not involve interaction with content of this type.  It is, in this sense, all very well to insist that intermediaries filter out bad traffic, if one’s starting point is that it is inherent to the operations of the intermediary that one can easily distinguish good from bad traffic.
21. That is not the case with telecom networks. In fact, it is a functionality that is antithetical to them. When the Consultation casually lumps telecom intermediaries together with on-net intermediaries, it builds in an unspoken assumption that to be a telecom common carrier in the Internet era is to build in the ability to distinguish between, and filter, different types of content.
22. That assumption is inaccurate. For Parliament to mandate that telecom common carriers build in such a functionality would not simply be to raise the costs of operating and, for prospective competitors, barriers to entry. It would also be to greatly facilitate the ability of common carriers to play an increasing role as speech enforcement intermediaries—the very function that net neutrality seeks to avoid. It would, in short, be to mandate the creation of a localized “kill switch” on each access network, where none was previously required.
23. Such a mandate should not be made lightly, nor without consulting the telecom industry, nor without considering its impact on Canadian telecom policy.  The Consultation does none of these things. We suggest that the government do so before proceeding.
24. We note, in this regard, the comments of the Quebec Superior Court in considering the scheme that Parliament enacted for an infinitely more troubling form of illicit activity:

    In this regard, it may be interesting to compare the method used by Parliament to eradicate the dissemination of child pornography. In 2011, it passed the Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service.

    This federal statute obliges persons who provide Internet services to the public to report if they are advised of an Internet address where child pornography may be available to the public or if they have reasonable grounds to believe that their Internet services are being used to commit a child pornography offence. The Act makes it an offence for ISPs to contravene the duty to report, but it does not oblige the ISPs whatsoever to cut the signal on their own or on the advice of any organization. ISPs are required to notify a peace officer, who is then responsible for taking the appropriate measures.

    Although we will not comment on whether a legislature may proceed in such a manner, it should be noted that the Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service complies with the non-intrusion of ISPs in the contents transmitted and ensures that the interruption of the signal is carried out by law enforcement officers.^{Footnote 2}

25. That the government is consulting on far more invasive measures, with far less sensitivity to net neutrality, than it did in adopting measures against one of the most serious crimes that exists, is troubling.

C. “Online intermediaries” is under-inclusive

26. As much as it is incorrect to lump online and telecom intermediaries together into a single category, Beanfield also notes with puzzlement that the Consultation appears to exclude the most relevant category of actor that intermediates online piracy, payment intermediaries.
27. This is especially perplexing since payment providers are not common carriers and, in fact, have more in common with on-net intermediaries, in which guise payment providers themselves appear insofar as they may be accessed online. In fact, payment intermediaries heavily regulated with respect to the content, size and nature of the transactions they intermediate.
28. There is no payment-sector equivalent to net neutrality. The Consultation argues that it seeks accountability for “all players”, and to enable enforcement mechanisms that are efficient and not cost-prohibitive. Yet. while it focuses on telecom common carriers, the least efficient links in the chain, parallel action on the part of each of which is required even to attempt to clumsily block access to particular IP addresses, domain names, or other easily-switched electronic locations—it ignores non-common-carrier payment intermediaries entirely.
29. This disparity is not easily understood.

D. Inaction is not feasible, but ham-fisted action may be worse

30. To be clear, Beanfield does not argue that no statutory amendment is required. In fact, upon review of the GoldTV cases, 2019 FC 1432 and 2021 FCA 100, it is plain that the opposite is true.
31. In those cases, courts dismissed the role of section 36 of the Telecommunications Act in safeguarding common carriage, and dismissed the extreme nature of such a remedy by regarding it as merely one amongst equal choices such that there was no need to ensure that more proximate and less blunt steps had not been taken:

    The alternatives discussed include (i) finding the defendants (various approaches are suggested), (ii) seeking the assistance of the defendants’ payment processing service to stop payments, (iii) seeking the assistance of app stores to remove GoldTV-related apps, (iv) seeking the assistance of CloudFlare, a service that protects and optimizes websites, to terminate GoldTV’s account, and (v) seeking the assistance of CIRA to remove the defendants’ “.ca” domains and subdomains.

    The Judge acknowledged TekSavvy’s arguments concerning proposed alternatives…. He found no basis to conclude that the alternative measures would be effective, characterizing them as speculative.^{Footnote 3}

32. That courts could order ISP-blocking when, all agree, none of steps (i)-(v) identified to those courts had been taken—each less overreaching, less expensive, and more effective than the novel and crude remedy sought and ordered—illustrates that there is a significant issue with the Copyright Act’s omnibus subsection 34(1) and its grant to courts of “all remedies … that are or may be conferred by law”. Change is required:
    • to ensure that, notwithstanding subsection 34(1) of the Copyright Act, the disruption of common carriage is a last and not a first resort;
    • to address the mess made of the relationship between the Copyright Act and Telecommunications Act in the GoldTV cases; and
    • to redress a situation in which complex technical orders that bind many telecommunications carriers are reviewed, ordered, and revised on a rolling basis in courtlike proceedings inaccessible to most telcos, including many of those who are inevitably subject to such orders.
    • Proper consultation is surely required before seriously considering any statutory change to the regulation of telecommunications common carriers in the manner implied by the Consultation. Yet such change is, inevitably, required:
33. Proper consultation is surely required before seriously considering any statutory change to the regulation of telecommunications common carriers in the manner implied by the Consultation. However, with respect to such change, Beanfield makes three recommendations.
34. First, subsection 34(1) of the Copyright Act must be narrowed in order to ensure respect for the broader statutory schemes in which it is set:

    Where copyright has been infringed, the owner of the copyright is, subject to this Act and to the specific provisions of any other statute, entitled to proportionateall remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.

35. Second, a more specific set of criteria must be provided as to the test to be applied before ISP-level blocking can be ordered. We note the list of criteria set out at page 18 of the Consultation. We do not agree with them because, in our view, they lack a human rights lens, a net neutrality assessment, and a requirement for proximity to the act of infringement; and do not control, as the Australian equivalent framework properly does, for the reach of Canadian law:

    (d) irreparable harm – the rights holder would suffer irreparable harm if the injunction is no granted (e.g. because the rights holder would suffer losses that would not be readily quantifiable or compensable in the circumstances)

    (d.1) least harmful – potentially alternative, less onerous methods available that the rights holder might pursue to target the infringement or locate the infringer would be demonstrablysignificatly less effective or ineffective, based on evidence of good-faith efforts to identify, or else seek a remedy in respect of, the infringer, provider of means for the reproduction of the work or of digital memory therefor, hosting provider, information local tool provider, and payment intermediary….

    (g) effect on users – the relief sought would not unduly affect the ability of users to access or make use of content lawfully or the exercise of their freedom of expression, having regard for the policy of network neutrality as an expression of telecommunications common carriage.

36. Third, we underline the formality and cost that would be faced by a telecommunications provider seeking to vary or challenge the technical details of such an order, in which the court is not expert. The statutory scheme in question should, therefore, provide that any such order be made so as to:
    • take into account any technical guidelines promulgated by the CRTC from time to time, and
    • to incorporate any revisions suggested by the CRTC on technical grounds.

E. Conclusion

37. Beanfield thanks the Department of Canadian Heritage for the opportunity to participate in the Consultation, and for considering both our views and our concrete suggestions.

Yours sincerely,

[filed electronically]

Dan Armstrong
Chief Executive Officer
Beanfield Technologies Inc.

cc: Telecommunications & Internet Policy Branch, Strategy and Innovation Policy Sector,
Innovation, Science & Economic Development Canada (ised.telecomsubmission-soumissiontelecom.isde@canada.ca)

Financial Crimes & Security Division, Financial Sector Policy Branch, Finance Canada (fin.fc-cf.fin@canada.ca)

Financial Transactions and Reports Analysis Centre of Canada (guidelines-lignesdirectrices@fintrac-canafe.gc.ca)