Lisa Macklem

May 31, 2021

Dear Ministers:

Please find my response as an individual to the consultation on a modern copyright framework for online intermediaries below.

While technology may be moving rapidly, laws are meant to be considered and weighed, and legislation should follow society and the courts' lead in determining changes. In Canada, those legislative changes should follow Canadian courts and serve all Canadians' interests. This is especially true in matters that affect the democratic process, freedom of expression, and the very nature of what it means to be Canadian as expressed through Canadian culture and innovation. The review committee needs to carefully assess who will benefit from changes to how online intermediaries are affected by changes to Canada's copyright framework. Will changes benefit Canadian creators and users, who are often also creators, especially those who are early stage or emerging innovators and creators, or will changes benefit American corporate interests? Giving greater control to vertically integrated corporate interests will only serve to create greater inequalities in the voices which are heard: gendered, racialized, and Canadian voices will be silenced.

I urge the committee to continue to rely upon the Notice and Notice system to regulate online intermediaries, with no changes that would undermine this system. This made in Canada system recognizes the basic legal tenet that a person is innocent until proven guilty. It also foregrounds access to justice for those less able to pay the high costs of litigation. By requiring an accuser to incur expenses in order to remove material, the system also requires those claiming infringement to be more sure of their case and perform due diligence, avoiding the negative outcome of copyright trolls.

The Consultation paper itself is full of vague language and proposals. During the Stakeholders Call, the committee representatives could offer no further concrete terms on exactly what was being proposed or who would be affected. I expressed concern in my consultation document for the copyright extension that the committee is following a divide and conquer approach to Canadian culture and the Canadian media industry. When asked a question about some uses of Social Media being considered as broadcasting in Bill C-10, the committee responded that a multi-pronged approach to online control/regulation was being used. Furthermore it was stressed that control of the online environment needs high-level coordination and is a moving target, but they were only answering questions on the Consultation paper. This does not allow for a detailed, informed response to the proposals for online intermediaries when they will clearly also be affected by changes from other quarters. I completely agree that this is an environment that needs high-level coordination and understanding, and I do not believe that the committee possesses the necessary knowledge to make nuanced decisions. In fact, during the Consultation Stakeholders call, the committee was not able to give any definitive answers as to whether universities and colleges would be considered online intermediaries. No definition for repeat infringers was being considered. There were no definitive terms on issues of scope for general measures to be imposed on hosting services. No consideration was being given to potential costs to intermediaries on new obligations or costs that would be passed on to users. No consideration was being given to the extra burdens being considered for the Copyright Board when that body is unable to deal with its current obligations in a timely manner. Currently, the Copyright Board has tariffs from 2007 pending decision.^{Footnote 1}

Turning specifically to the Consultation paper itself, I have many reservations about the proposals. As with the previous Consultation on Copyright Extension, it seems that the Committee is expecting everyone else to provide the details and the expertise. Unfortunately for Canadians, it appears that the committee is creating a Frankenstein monster from a patchwork of foreign legislation, legislation such as the Directive on Copyright in the Digital Single Market.^{Footnote 2} There have been objections to this legislation on the basis of Human Rights, and several countries within the EU itself have objected to adopting it. In a public letter, David Kaye, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, stated particular concern over the vague boundaries and definitions of the Directive and very serious concern "that the proposed Directive would establish a regime of active monitoring and prior censorship of usergenerated content that is inconsistent with Article 19(3) of the ICCPR."^{Footnote 3} Kaye particularly emphasized the right to freedom of expression and the right to information of all kinds. Users and technology companies opposed the Directive, and "statistics inside the European Parliament show that MEPs have rarely or even never been subject to a similar degree of lobbying before."^{Footnote 4} If the committee insists on looking at approaches in other jurisdictions, I hope that the committee will also look closely at the many objections to those initiatives, and the current fallout from them as well. The EU Directive is still in its early stages, and the committee should consider not making any similar changes until some time has passed to see the true effects of the policies put in place – and whether all countries in the EU meet the June 7, 2021 deadline to comply.

Turning to the Executive Summary of the Consultation paper, it contains a great many vague statements and negative connotations. The paper posits that "some intermediaries" and "certain intermediaries" are already subject to current regulations, including Notice and Notice and court ordered injunctions. The suggestion here is that some are not or are not complying. There are no specifics, just negative connotation. The entire Executive Summary has an assumption of guilt on the part of users and intermediaries, emphasizing that "Canada's copyright framework establishes liability… including 'safe harbors' where intermediaries merely provide the technical means by which others infringe."^{Footnote 5} Canada's Notice and Notice system actually operates under the assumption of innocence, which I will return to later in this document. While de-emphasizing the impact new restrictions would have on intermediaries – only 'some' of whom don't seem to comply – the Executive Summary points out its main concern with "Many rights holders."^{Footnote 6} It is important to unpack this term. Rights holders does not refer to authors or creators or users or intermediaries. It only refers to those who own the rights and therefore have a primarily economic interest. I am not suggesting that others do not also have an economic interest, but why emphasize the role of collective societies so thoroughly in this document if your primary concern isn't simply with economics? Much more attention has to be given to the other concerns such as creativity and innovation and freedom of expression and access to information and culture. I have spent over ten years researching digital content delivery by the entertainment industry in the United States, Canada, and internationally, and I wholeheartedly agree with the "many intermediaries and others [who] have argued that Canada's laws sufficiently protect copyright online and intermediaries' current protections from liability and enforcement obligations promote an open Internet, advancements in online services and economic growth in Canada."^{Footnote 7} However, that experience has also taught me that this committee is unlikely to take that advice at face value and address the real problems that are hindering Canadian creators in the digital space.

Turning to the first two sections of the Consultation document, it again lacks any specifics, such as statistics, making vague claims of increased availability and speed, new opportunities and challenges. The definition of online intermediaries is extremely broad. In addition, "Intermediary services have also diversified"^{Footnote 8} is vague. If these intermediaries are taking more active roles in content distribution or creation, do they not now cease to be intermediaries? I do not agree, however, with many of the positions proposed in Bill C-10. It shows a complete lack of nuanced understanding of the industry as a whole to force entities to be one thing or the other when a new system entirely needs to be envisioned. Just because something may no longer be an intermediary does not mean that it automatically becomes a broadcaster any more than a caterpillar becomes a bird because it sprouts wings and flies when it leaves the cocoon.

The first goal articulated by the Consultation is "To protect and encourage the use of copyright-protected content online."^{Footnote 9} The repetition of protect/protected emphasizes the government and corporate interest goals of protectionism while ignoring the vital aspect of creation and innovation that relies on a free flow of information and ideas as well as access to materials. Access would seem to be the antithesis of this consultation. This goal suggests that rights holders are at a disadvantage when attempting to negotiate remuneration and in being able to protect against infringement. The goal suggests the need for "enforcement mechanisms that are efficient and not cost-prohibitive."^{Footnote 10} Again, it is unclear who finds the current measures expensive and inefficient. Judicial decisions would suggest that collective societies and corporate interests have the means and ability to litigate, while individual users and entry-level creators and entrepreneurs are at the greatest disadvantage. Far from encouraging the creation and wide distribution of works of the arts and intellect, these measures would have a chilling effect on them. The Consultation paper makes the claim that increased protection would increase "broad public assess to content for consumption and permitted use."^{Footnote 11} One wonders, use for what? In addition, more onerous requirements on many online intermediaries will be passed on as increased fees to users, thus effectively reducing public access through income inequalities.

The second goal articulated in the Consultation paper is laudable. The support for net neutrality and user-generated content is crucial to a flourishing Canadian model that supports creativity and innovation. This goal also underscores the human rights neglected by the EU Directive as well, stressing the importance of freedom of expression.

The third goal is to "facilitate a flourishing digital market."^{Footnote 12} The committee seems to believe that online intermediaries need more legal certainty, but they don't provide specifics as to when this has proven to be an issue. One of the benefits to this certainty is "being able to avoid resource- and time-consuming litigation,"^{Footnote 13} which, frankly, sounds like a veiled threat. It is possible that a system carefully tailored to entities that act as more than ports of access could conceivably be necessary as digital content delivery continues to evolve, but such a system needs to be based on very specific benchmarks and definitions – not the vague parameters of this Consultation. The third goal also suggests that "being allowed to engage in mutually beneficial private arrangements"^{Footnote 14} would be a benefit. First, there is no "allowance" necessary for anyone to enter into a contract with another. More importantly, the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada^{Footnote 15} stressed that "The availability of a license is not relevant to deciding whether a dealing has been fair." Anyone is also free NOT to enter into a contract or a license.

Turning to the Context section of the Consultation, the provided context for online intermediaries is again overly broad. In fact, the diversity of services provided by online intermediaries demonstrates why specific examples are necessary. No litigation can proceed in any court without specific facts. The Consultation claims to be providing clear guidelines and legal certainty of liabilities and obligations, yet seems to be leaving a great deal of doubt as to whom they will apply. In discussing the Copyright Act, the Consultation paper sets out the safe harbours afforded to intermediaries that have worked well. The discussion curiously conflates the Notice and Notice system with basic legal obligations that fall outside of the Copyright Act, specifically court ordered injunctions. The Consultation references the SCC Google v Equustek Solutions^{Footnote 16} case. One of Google's objections to this particular case was that in carrying out the order for a temporary injunction world wide on Datalink sites, the decision basically amounted to a permanent injunction and obligation on Google with on-going expenses associated with tracking all websites globally. The Consultation ignores the fact that Equustek only pursued further legal action against the actual wrong-doers when the District Court for the Northern District of California^{Footnote 17} granted preliminary injunctive relief for Google, effectively voiding the SCC order as unenforceable in the United States.

The Consultation paper spends a disturbing amount of time discussing Notice and Takedown and Notice and Stay-down provisions. Under no circumstances should these provisions be adopted by Canada. Both of these systems assume guilt as a starting point and push the legal burden onto the user. These systems are rife with misuse of cease and desist letters to innocent users, creators, and innovators. They both provide an unequal playing field, giving all the power to corporate, mainstream entities, silencing diverse voices. Those with least access to justice, often through economic inequalities, are racial and gendered populations. I agree whole-heartedly with the very detailed and nuanced report prepared by INDU.^{Footnote 18} There is no need to amend the safe harbors at present and much more study of on-going international developments needs to be undertaken. The very holes and misunderstandings in the Consultation paper support this conclusion.

The Context section of the Consultation paper also points out that more transparency from collective societies as well as intermediaries who currently collect royalties would help to ensure fairness for remuneration. Artists have encountered problems with fair remuneration not only from intermediaries but also from the corporate interests who own their work and the collective societies. While not Canadian, Taylor Swift's own battles in these areas are illustrative that even the most famous creators may have little power in this arena, let alone new artists. I would also point to the interest Bryan Adams had in the Copyright Review process, and his advocating to help those who are less famous.

Finally, the context section also references research that confirms that "online streaming is now the primary way by which Canadians consume media."^{Footnote 19} This has never been more true than during the Covid-19 pandemic. However, the research conducted by the committee failed to consider that there is a real and direct correlation between increases in the costs to users of online content and an increase in infringement. In fact, a 2018 study prepared for Innovation, Science and Economic Development Canada by Kantar TNS^{Footnote 20} contains statistics to support this finding. The study revealed that in a country to country comparison, using Canadian dollars, Australia had the highest percentage of any illegal infringement at 38% and the lowest percentage of 100% legal at 62%. Canada had 26% illegal and 74% legal, while the United Kingdom had the lowest percentage of illegal at 25% and the highest legal at 75%. Australia paid the most for online content for music ($100 per quarter), tv shows ($25), movies ($68) and video games ($37). Canada paid the second highest (music – $64, tv shows -$11, movies – $35, and video games – $28) and the United Kingdom paid the least (music – $39, tv shows – $9, movies – $33, and video games $20).^{Footnote 21} Furthermore, the paper indicates that a 2019 study (to which the link is broken) "seemed to support many rights holder submissions that they are struggling to make a living from their streaming revenues."^{Footnote 22} However, there is no indication that these rights holders were making a living from the streaming revenues prior to 2019. There is also no indication of whether these 'rights holders' are collective societies, music labels, or individual creators.

Moving on to part four of the Consultation report that sets out Potential Options for Reform, I will touch briefly on each suggestion. The paper indicates that "These options are independent but could be combined in various ways."^{Footnote 23} In fact, all of the proposed options would actually have a very similar impact: all would make access more difficult for the average user and entry level innovator and creator. The paper also indicates that significant changes, such as moving to Notice and Takedown or Notice and Stay-down are not "presently" being contemplated.^{Footnote 24} However, later in the document, these two systems are discussed, indicating that the committee is contemplating them on some level. I cannot stress enough the detrimental effects that both these systems would have, especially in light of the burden that would be placed on users. In fact, in section 4.1.1, the paper considers modifying the system, using Notice and Takedown as a model – when Notice and Notice should be the model for other systems.^{Footnote 25}

In section 4.1, the paper suggests clarifying "the conditions or obligations of safe harbour protection."^{Footnote 26} The major suggestion here is again an assumption of guilt, suggesting that intermediaries need a clearer incentive to enter into licensing agreements. I refer again to the CCH case that says fair dealing is not affected by the existence of a license. It appears that the incentive would be to force intermediaries into licenses as some form of insurance against litigation. The paper once again turns to other jurisdictions for solutions in this section, suggesting building on changes that intermediaries have made to comply in those jurisdictions, but without specifying which jurisdictions or changes. I would point to Australia's recent experience in trying to force Facebook to comply with new legislation that required Facebook to pay for news content on its site. The result was that Facebook simply removed all the news content. Of course, this meant that a significant proportion of the population also lost access to news – an important part of a functioning democracy is a well-informed populace. The committee must carefully study the effects of recent legislation, which could take several years to play out, before instituting radical changes.

Section 4.1.1 suggests "adjusting the degree to which an intermediary must know that its services are being used for infringement."^{Footnote 27} The report suggests a broader grounds of knowledge of infringement that could "prompt greater attention by intermediaries to potential infringements facilitated by their services."^{Footnote 28} How this surveillance is to take place is left to the reader's imagination. Current Artificial Intelligence 'bots' that scrub sites for infringing content are notoriously over protectionist, resulting in numerous completely legitimate content being flagged for takedown. The paper further suggests that any notice of possible infringement would then consist of knowledge of infringing material on the part of the intermediary. The intermediary would then be responsible for making a judgement on whether the content needed to be removed. Clearly, in order to avoid litigation or the loss of the safe harbor, the intermediary will takedown the content in question, resulting in a de facto Notice and Takedown system. The paper then returns to the option of injunctions, but these need to be specified with a time limit. Intermediaries should not bear the burden of paying to enforce copyright compliance on the Internet. A temporary injunction to safeguard the legitimate rights of a copyright holder should not metastasize into a permanent injunction or burden.

Section 4.1.2 once again returns to the concept of forcing intermediaries to enter into licenses. However, this section is also more specific and suggests that licenses would only be required by intermediaries which play an active role. The section indicates that "Clearer factors indicating such an active role could also be specified."^{Footnote 29} In fact, clearer factors must be specified in order to provide the certainty that this report keeps stressing is its purpose. The factors that are suggested are a good start: "these factors would need to be carefully selected so as not to encompass basic efforts to optimize user experience. Factors could also include having control over the content or activity, including editorial responsibility or remunerating the primary infringer for it."^{Footnote 30} The troubling language here once again assumes infringement and guilt. I would also expand on the idea that "safe harbours… apply only where an intermediary lacks a financial stake in the infringing activity at issue."^{Footnote 31} Safe harbours should always apply liberally in cases in which the intermediary lacks a financial stake in the activity at issue.

Section 4.1.3, which suggests new obligations for qualifying intermediaries, is particularly concerning. The 'notification and action mechanisms' suggested is really moving toward a notice and takedown system – something the committee repeatedly denied they were contemplating. It would require intermediaries to make determinations about infringement instead of a court and to apply a higher standard than a court or the Copyright Board in communicating their decisions without any delay. There is no guideline as to what should form the basis of the intermediary's decision. The report stresses that the "decision [of the intermediary] would not limit the complainant's options concerning further legal action."^{Footnote 32} There is once again no concern about users' or uploaders' rights or options. Furthermore suggesting that the intermediary "provide each party an opportunity to rebut the other's claims" is completely contrary to how the Notice and Notice system works by requiring the complainant to have a legitimate case before the alleged infringer has to incur costs. Furthermore, suggesting that the "intermediary could also be required to inform the parties of their possible means of further redress"^{Footnote 33} is troubling on two fronts. Is the intermediary responsible for providing legal advice to both sides? This also sounds eerily similar to a cease and desist letter – another thing that the Notice and Notice system was designed to combat and to which a great deal of public education was devoted to prevent confusion between cease and desist letters and actual court orders. The report also suggests leaving the definition of a repeat infringer and what to do about them up to the intermediary's judgment rather than as specifically defined within the Copyright Act or as decided by a court. Once again, these decisions are held out as a way for intermediaries to avoid further legal action against them. The report acknowledges that these increased obligations may "present challenges for certain intermediaries given the potential volume of notifications they could receive and actions they may take in response."^{Footnote 34} Where is the evidence that the intermediaries aren't dealing with the notifications they are currently receiving? Again, there is a lack of concrete evidence that these measures are necessary. Where is the problem that is being addressed by these new measures? The suggestion that "an intermediary would not be liable for any damages resulting from good faith disabling of access to or removal of content pursuant to these schemes"^{Footnote 35} is clarified in a footnote referencing similar aspects of US and EU law – that is Notice and Takedown and Notice and Stay-Down provisions. Again, all the cost is being transferred to the users, creators, and innovators who are uploading the content, chilling creative and innovation endeavors.

Section 4.2 returns more fully to compelling compulsory licensing through collective societies. The report makes two recommendations: a compulsory license scheme or an extended collective licensing scheme. It is not surprising that music and audio-visual content (television and movies) are suggested as the "certain types" of content to be targeted by compulsory licensing as this ensures the greatest profit to corporate owners of that content – primarily United States owned conglomerates. The costs of licensing would be borne by the online intermediaries to some extent, but primarily the costs would be passed to the user – with the typical response, as alluded to above, that users will infringe more if they don't feel that they are paying a fair price for content.

More attention is given to an extended collective licensing scheme. There is a great deal of discussion about a "threshold of rights holder representation" but no clear idea of what this is or who would determine such a threshold. Suggestions include designation through the Act or by the already overburdened Copyright Board. Those who met this threshold would then be required to enter into a licensing "scheme." Rights holders who are members of the designated collective society would be automatically entitled to royalties collected on their behalf but could opt out if they wished. However, if they opt out, they are not able to later sue the intermediary, clearly making the incentive to opt in. There is more unclear language: "Each scheme could require some limitation"; "Royalties and related terms and conditions could be negotiated… or established by the Board by way of tariffs or individual licences where negotiations are unsuccessful."^{Footnote 36} It would not be logical to suggest that this "scheme" is in any way a coherent plan. As already mentioned several times, the Copyright Board is already backlogged with the tariffs it is charged with setting now. The paper references the York University v Copyright Licensing Agency^{Footnote 37} in connection with whether there is a "clear basis for the intermediaries' obligations to pay royalties in respect of the relevant uses"^{Footnote 38} as an issue before the courts. Indeed, this issue is currently before the Supreme Court, but the current ruling from the Federal Court of Appeal is clear that such tariffs are not mandatory, citing CCH, in light of the availability of a license not negating fair dealing.

The paper makes more vague suggestions about limiting the requirement to certain types of hosting intermediaries. In theory, this could be a workable option, but the requirements need to be set using bright lines and very high thresholds. It is quite possible that stored, copyrighted material uploaded by users could be entirely legal, so this should not be considered as a threshold. Basing thresholds on the size of an intermediary, based on revenues AND user volumes, is a possibility, but again, these would need to set at the highest level.

In examining the benefits of this scheme, the paper outlines fair remuneration for rights holders and avoiding litigation. Again, the vast majority of these rights holders are corporate owners, not the authors and creators. In outlining extending "the benefits of Canada's collective management system in the online environment where more and more copyright-protected content is being created and disseminated,"^{Footnote 39} it would seem that the benefit would be a wider net for collective societies to draw revenue from. In addition, this ignores the basic practices of sharing content on the Internet, much of which is done for free, such as open source software.^{Footnote 40} Furthermore, the paper goes on to suggest that "intermediaries could avoid the need to negotiate directly with individual rights holders or deal with large volumes of individual claims of infringement,"^{Footnote 41} yet no statistics are provided to demonstrate what exactly is meant by 'large volumes' – there are no concrete figures provided. Most curiously, the paper then goes on to expound the virtues that this scheme would help intermediaries avoid the cost of stay-down or takedown processes, which we do not have in Canada and which the document itself has already stated aren't being contemplated. This alone creates distrust of this proposal.

The paper does admit that the licensing scheme would result in increased costs to intermediaries which are "justified in the circumstances and in any event provide the intermediaries with the legal certainty needed to operate and innovate in Canada confidently and cost-effectively."^{Footnote 42} Incur more cost to be cost-effective? The committee also seem to be confusing who is doing the innovating that Copyright legislation should be supporting – the creators and inventors, not the conduits to knowledge and research needed for that very creation and innovation.

Section 4.3 covers increasing transparency in the remuneration process by both intermediaries and rights management organizations. Once again, the most onerous requirements fall upon intermediaries. Requiring "certain intermediaries to track and disclose information"^{Footnote 43} is once again vague with no clear definition of which ones or justification for such a definition. Revealing the number of user views or listens may be proprietary information that could seriously damage a business model, and here I reference Netflix's reluctance to reveal such information to the Copyright Board. The five suggestions in the paper would be costly and that would be additional cost passed on to users. In addition, how the intermediaries handle notices of infringement is already covered adequately by the Notice and Notice provision. The suggestion that these somewhat onerous provisions be applied only to "certain public content-sharing services"^{Footnote 44} is again a way to coerce intermediaries away from public content-sharing if that will significantly reduce their overhead. There is more vague language about "entities beyond a certain size," so again, I would suggest very high thresholds: profits over $10M; individual users over 2 million as a very basic starting point. The paper goes on to suggest expanding both the obligations and authority of the Copyright Board, and again, I stress the inability of that body to meet its current obligations in a timely manner. Furthermore, requiring detailed regular reports or even reports upon request puts further obligations and costs upon intermediaries, disincentivizing them from carrying at least some legitimate content if they feel it will cause them more work. Maintaining lower levels of content, especially Canadian content, may mean fewer headaches for them. In support of creators/authors and not huge corporate owners of content, I do find the suggest of greater transparency from rights management organizations a step in the right direction.

Perhaps the most disturbing section of this proposal is section 4.4 to "Clarify or Strengthen Enforcement Tools Against Online Infringement."^{Footnote 45} The section starts well enough by stating that the "Government's focus is primarily commercial-scale infringement"^{Footnote 46} as it should be. I would remove the 'primarily.' Section 4.4.1, however, attempts to do an end run around the current Notice and Notice regime, by calling takedown and stay-down orders "injunctions." Was the committee thinking that burying this complete about face on Notice and Notice wouldn't be noticed this far into the document? The justification appears to be that "It could be specified that such orders be available in at least certain cases without the need to first obtain judgment directly against the alleged infringer or include the alleged infringer as a party to the proceedings."^{Footnote 47} Where exactly is due process? There is more vague language here as well with more "certain cases" – which ones? Some of these issues have already been decided in court. In Netflix, Inc. v. Society of Composers, Authors and Music Publishers of Canada^{Footnote 48} the issue centered on a complete misunderstanding of Netflix's business model on the part of the Copyright Board. Further, in challenging a tariff administered by SOCAN, Netflix was an intervener. However, Nadon, JA stated "Before concluding, I would simply say that, in the end, rules of procedure are there to serve the interests of justice. In my view, justice in this case required that Netflix be given the opportunity of putting its case forward with regard to the issues of fair dealing and technological neutrality."^{Footnote 49}

The paper continues to outline that a rights holder "would only be able to forego obtaining judgment directly against an alleged infringer first where the rights holder has made a good faith but unsuccessful effort to identify the alleged infringer."^{Footnote 50} What is the standard for "good faith effort" here? The paper proceeds to outline a framework for injunctions based again on other jurisdictions, but there is no indication of how this really varies from the Norwich and Mareva injunctions that are already available through Canadian courts. This section also states that "a court could limit the proposed application of such an injunction where an intermediary has established that compliance would violate the laws of another jurisdiction given the extra-territorial nature of the Internet."^{Footnote 51} As already noted, this is what happened in Google v Equustek Solutions. The end result may in fact be that online intermediaries become wary of carrying Canadian websites, thus chilling innovation.

Finally, the section ends with proposals to "Clarify or Strengthen Other Enforcement Tools Against Online Infringement."^{Footnote 52} The first proposal is to lower the burden of proof for infringement, essentially gutting Notice and Notice. Further, it is suggested that an update to certain criminal offences under the Act be made to "ensure that they are technologically neutral in a way that would encompass the operation of streaming services for commercial purposes but would not unduly criminalize users."^{Footnote 53} This seems like a very targeted approach that belies the nod to technological neutrality. Finally, the committee again turns to the US for inspiration, proposing very quickly instituting a small claims type court, such as was introduced by the CASE Act in the US. This onerous legislation was buried in the emergency omnibus bill that covered Covid-19 relief in December 2020. There has been much criticism of this system and fears that it will open a floodgate to copyright trolls and create an additional burden on their Copyright Office.^{Footnote 54}

Annex A of the Consultation paper addresses stakeholder perspectives. There are even more reasons outlined here to support a great deal more effort be put into really researching and understanding the various industries affected by the proposals withing the document. While this consultation had a longer time frame than the first on the extension of copyright duration, the timeframe doesn't really allow for the nuanced discussion of these industries nor for a statistically supported criteria and reasoning for setting the many limits and thresholds proposed. In the discussion of the music industry within the Annex, it states "They have also suggested that any shortfalls in rights holder remuneration are mostly due to other forces, including issues with royalty allocation from rights management organizations or market trends away from more lucrative revenue streams."^{Footnote 55} In order to understand rights in the music industry, it is important to understand the business model itself, including comparing compulsory licenses for radio versus those for streaming.

The document also references that intermediaries should have greater obligations because of "the considerable resources that many intermediaries have compared to rights holders and the active roles of many intermediaries in the dissemination and use of content online."^{Footnote 56} However, this doesn't take into account the enormous wealth and influence of the collective societies themselves and the large corporate owners of content. The paper also states that "a number of ISPs have expressed support for stronger, clearer injunctive remedies whereby they could be compelled by court order to prevent or stop infringement without incurring liability themselves"^{Footnote 57} yet there are no specifics tied to this statement. Which ISPs? How was this expressed? Why is there not even one footnote to support this point?

I will only state my whole-hearted support for the section on broader policy issues. The impacts on individuals and the open Internet can not be underestimated. Research and education are necessary drivers of creativity and innovation. Every creative or innovative endeavor begins with learning the history of a craft and building upon it. Broader market impacts are also a vital piece in this puzzle. Rising costs will drive users to infringe more. More restrictions will quell freedom of expression. Costs and restrictions may make made in Canada a lot less attractive, chilling creativity and innovation further when intermediaries become risk-averse to Canadian websites and content.

In conclusion, I urge the committee to commit to a Canadian solution. Canada's copyright has always been user friendly and it should remain so. Notice and Notice is working. This consultation should function as only a preliminary to a much more in-depth and nuanced approach to reform. I would hope to see further outreach and consultations that would include a great deal more research into specific industries and that provide concrete proposals for thresholds and who would make decisions. If the committee does proceed with any of these proposals, a major overhaul of the Copyright Board and a major infusion of funding would be necessary. Any 'thresholds' should be set very high, and definitions of repeat offenders should only attach to organized efforts with the purpose of profit and not individuals. In addition, definitions and categories of online intermediaries need to be considered very carefully. The use of artificial intelligence bots to scrub the Internet for infringing materials should be seriously discouraged as they inevitably result in overly broad results. I would urge the committee not to adopt any of the current legislation in other areas, specifically the EU, US, or Australia, until those new measures are given time to show whether they are workable. Early indications are that these new measures will have unexpected, negative outcomes for users and early entry creators and innovators. I also urge the committee to refer often to the Statutory Review of the Copyright Act, which is detailed and nuanced in its assessments, and perhaps refer to the in-depth nature of its investigations for inspiration.

Sincerely,

Lisa Macklem

BA, JD, LLM, MA, PhD Candidate

University of Western Ontario

lmacklem1@gmail.com

lmackle2@uwo.ca

London, ON