Le Groupe de diffuseurs indépendants

My 31, 2021

Hon. François-Philippe Champagne Minister
Innovation, Science and Economic Development Canada
235 Queen Street
Ottawa, Ontario K1A 0H5

via email: copyright-consultation-droitdauteur@canada.ca

Re: Consultation on a modern copyright framework for online intermediaries

Independent Broadcast Group/Le groupe de diffuseurs independants (“IBG/GDI”) is pleased to provide these comments as a part of the Governments’ consultation on the copyright framework for online intermediaries.^{Footnote 1} IBG/GDI’s members consist of Canada’s leading independent broadcasters.^{Footnote 2}

IBG/GDI’s members are engaged in all lines of broadcasting, including conventional radio and television, discretionary television, pay audio, and online linear and on-demand broadcasting. IBG/GDI’s members offer audio and audio-visual content from all programming genres and formats, in English, French, Indigenous languages and virtually all third-languages spoken in Canada today.

IBG/GDI members provide content that is fully licensed from copyright holders through a combination of direct and collective licensing (in the case of musical works) and otherwise in accordance with applicable domestic laws. In many cases, these services rely on exclusive Canadian rights, including exclusive online rights.

As legitimate players in established and emerging broadcasting markets, IBG/GDI’s members have a strong interest in curbing online piracy. We support the establishment of a legislative framework that would facilitate the imposition of injunctions to prevent or stop copyright piracy.

We are concerned, however, regarding the suggestion that the Government may consider collective licensing as a possible remedy for copyright piracy. Such a regime could be disruptive to legitimate copyright licensing activities, such as those undertaken by legitimate and innovative Canadian online services.

Fighting piracy

IBG/GDI is pleased to see that the Government is considering clarifying or strengthening the tools available to rights holders in combatting copyright infringement. Piracy is rampant in online broadcasting. Not only are individual movies, TV shows and musical selections available from illegal sharing and other sites, but entire television services – indeed, entire content distribution platforms – are duplicated and distributed online on a pirated basis.

In our experience, illicit sites and services are often located outside of Canada. In recent years, IBG/GDI’s members have found themselves competing with illicit services from jurisdictions as far away as Russia and Cyprus. The site operators are next to impossible to identify, at least economically – since they hide behind shell companies, third party services and registration companies, and technical screens. Bringing these foreign entities to a Canadian court is nearly impossible.

IBG/GDI is encouraged that the Government acknowledges in its consultation paper that enforcing copyright law against these foreign commercial operations is extremely difficult, time-consuming and expensive.^{Footnote 3} Indirect approaches – such as targeting the sale of set-top- boxes used for the reception of pirated content – have had mixed results. In any case, these indirect approaches do not target the pirates themselves, who are enriched through the illegal exploitation of rights and services that belong to others.

Online intermediaries such as ISPs and search engines are well-positioned to aid in the fight against piracy. As the consultation document notes, some rights holders have obtained website blocking and de-indexing orders against ISPs and search engines. Recently, the Federal Court of Appeal has upheld a site blocking order made in relation to certain notorious pirate websites.^{Footnote 4} While these orders have been helpful, IBG/GDI agrees with the Government that more must be done to streamline and clarify the process to obtain them. Moreover, these orders rely on the Court’s inherent jurisdiction to award equitable remedies, such as injunctions. The availability and scope of the orders is, therefore, always uncertain.

IBG/GDI therefore supports the establishment of a statutory basis and procedure for injunctions against intermediaries as described in section 4.4.1 of the consultation paper. The consultation paper correctly points out that setting out the requirements, procedures and safeguards in the statute for obtaining these injunctions would reduce unnecessary litigation.^{Footnote 5} It would also ensure that any such orders are made within an established framework that takes into account important policy considerations to ensure a minimal impact on intermediaries and the continued, unfettered flow of non-pirated content across the Internet.

We do wish, however, to register one note of caution. The consultation paper suggests that the existence of a statutory scheme could encourage intermediaries and rights holders to collaborate on a framework that could deter litigation.^{Footnote 6} If this refers to a system by which intermediaries would engage in site blocking or de-indexing without judicial oversight, then IBG/GDI has reservations about such a system.

Aside from any concerns that unauthorized interference with communications by ISPs could run afoul of the Telecommunications Act, a lack of judicial oversight carries with it certain risks. For example, if large vertically integrated ISPs are permitted to block web addresses without a judicial order to do so, there is a risk that these ISPs could use this power to protect the rights owned by their affiliated media companies’ programming services in a streamlined manner, while requiring independent services such as IBG/GDI’s members to engage in the slower and more costly litigation process to obtain similar orders.

There is also a risk of false or incorrect claims of piracy against legitimate rights holders such as IBG/GDI’s members.

Appropriate judicial oversight would greatly reduce this risk.

In IBG/GDI’s view, the interests of rights holders would be better served by a judicially supervised process, with a clear statutory basis, that is provided on an expedited basis.

Collective licensing

IBG/GDI’s members currently obtain licences for the music used in their services by availing themselves of the applicable copyright tariffs. They also obtain direct licences from rights holders for the use of the programming they stream.

The consultation paper identifies the option of creating a new collective licensing scheme to cover online intermediaries who host content uploaded by third parties. This category of intermediaries would not appear to include IBG/GDI’s members in any significant way. However, the content being described is potentially the same as the content for which IBG/GDI’s members acquire rights from rights holders, including exclusive streaming rights in many instances.

In IBG/GDI’s view, any new collective licensing scheme should not apply to rights that are currently negotiated with rights holders, including on an exclusive basis. Legitimately acquired rights are the basis for IBG/GDI’s members’ online services. Even if royalties were paid for the use of unauthorized content online to rights owners (and exclusive licensees), the ability to simply pay royalties would negate the value of negotiated rights and seriously harm the value of legitimate online services. This would be highly disruptive to the orderly development of online services in Canada and to ongoing innovation by Canadian companies.

Any new collective licensing scheme would need to be very carefully tailored to avoid disrupting the existing markets for negotiated rights.

Conclusion

IBG/GDI appreciates this opportunity to participate in the Government’s consultation on the copyright framework for online intermediaries. IBG/GDI supports the creation of a legislative framework that would facilitate the imposition of legal remedies against pirated online content, including through judicially imposed site-blocking and de-indexing orders. IBG/GDI has concerns, however, regarding the suitability of enhanced collective licensing as a tool to address online piracy. This could be highly disruptive to legitimate online businesses that rely on negotiated licences.

Finally, IBG/GDI has reviewed the draft submission of the Canadian Association of Broadcasters (the “CAB”) and supports its comments regarding the need to avoid overlapping collective or compulsory licensing regimes, the need for clarity regarding the identification of online intermediaries and the urgency of fighting online piracy.

Yours truly,

[Submitted Electronically]

Joel R. Fortune Legal Counsel