Mark Sullivan

re: Response to the Consultation on a Modern Copyright Framework for Online Intermediaries

date: 2021-05-31 submitted by: Mark Sullivan

As a member of the Law Society of Alberta and the Law Society of British Columbia, I have watched with some trepidation as the present administration moves forward with the potential reforms to Canada's copyright framework. I thank you for this opportunity to articulate my concerns.

Copyright is a temporary monopoly right granted by society to creators of works in an effort to foster creation of new works. This needs to be restated here because this definition was notably absent from the Consultation. It is through this lens that all decisions relating to suggested changes to the current legal framework need to be judged. "Will Canadian society benefit from this change?" is the key question that needs to be asked when addressing each proposed change.

The Digital Revolution has dramatically changed the range and extent of copyright powers. By virtue of the Internet of Things, laws that were originally drafted to apply to literature and the arts now cover everything from cars to smart toasters. By virtue of Web 2.0 and the participatory culture it fostered, laws that were intended to restrict the actions of traditional publishers and counterfeiters now apply to society at large.

The model of copyright protection in the Copyright Act is antiquated and desperately in need of revision. Unfortunately, the suggestions proposed throughout the Consultation are a poor attempt to preserve the status quo, committed to a future presupposing the continuation of what Professor Lawrence Lessig has aptly termed "read only culture." The sweeping reforms needed to help today's Canadians become tomorrow's leaders in the new information economy are nowhere to be found.

The problems with the proposals stem from the fact that the Consultation starts with anachronous objectives, ignoring the "user rights" approach favoured by leading academics and the Supreme Court of Canada. Starting with this flawed premise, it is unsurprising that the proposals prioritize corporate interests over those of everyday Canadians, going so far as to attempt to pass along the cost of enforcement of private monopoly rights to the country's citizens and businesses. Even if the proponents' aims are considered to be valid, there is no indication that their proposed solutions are evidence based. Examples of societal benefits resulting from positions advocated for are absent, despite the fact that the proponents argue fervently one of the reasons these laws are needed is because similar laws exists is other jurisdictions. Finally, and perhaps most importantly, the proposals in the Consultation amount to nothing less than an attack on freedom of expression and a threat to the values of freedom and democracy.

Anachronous Objectives

The objectives of the proposed amendments appear to completely ignore many of the dramatic changes our society has undergone in the last 15 years, and disregard the even more sensational changes that are expected in the near future. While purporting to ensure the country's "copyright framework reflects the evolving digital world" the Consultation goes on to omit the most significant modern jurisprudence on the issue. The Supreme Court of Canada has held copyright exceptions are "users rights."^{Footnote 1} In turn, Copyright scholars have invited Parliament to amend the Copyright Act to specifically refer to "users rights."^{Footnote 2} The Consultation does not once refer to "users rights." This omission is glaring. Of equal concern, despite listing "To safeguard individual rights and freedoms in an open internet" as one of the three goals of the Consultation, not a single recommendation to expand the rights of individual users can be found in the document.

Perhaps equally telling, there is no comment addressing the kind of society we wish to build. Firmly routed in the past and travelling in lockstep with the read-only culture it advocates, the Consultation makes no genuine attempt to address the dangers the proposed laws may pose to the nascent collaborative culture that has been born by our new state of inter-connectivity. Seeking knowledge requires collaboration. Our society stands on the precipice of a new world where collective knowledge has the potential to bring about momentous change. Before further restricting the free fow of knowledge, Canadians have an obligation to ask what society will be getting in return. This brings us back to the question asked above, which will continue to be asked throughout this response - "Will Canadian society benefit from this change?"

It is appropriate to take human rights into account when evaluating copyright legislation. Everyone has the right to participate in the cultural life of the community.^{Footnote 3} Culture does not exist in a vacuum. It is developed by learning from and adapting existing works. Protection of authors' interests does not supplant human rights intrinsic to a work. It is through this prism that copyright legislation should be judged.

Copyright scholars and modern authors understand that a seismic shift is underway. Remixculture is supplanting read-only culture. New forms of collaboration are opening doors to creative culture that were unthinkable even a few years ago. Drafting modern copyright legislation will require a paradigm shift. Award winning Canadian author Cory Doctorow put it eloquently when he said "If you're not making art with the intention of having it copied, you're not really making art for the twenty-first century."^{Footnote 4}

Prioritizing Corporate Interests Above the Interests of Canadians

The drafters of the Consultation paper may have given away their underlying motives when they chose to refer to "rights holders" as opposed to "authors" when drafting the Consultation. These drafters are presumably well aware that the primary beneficiary of the proposed changes would not be the individual authors, but rather the corporations who own the rights to the authors' creations. Quite simply, the drafters understand the current system rewards publishers instead of artists.

It can often be helpful to investigate the parties advocating for changes to the law when attempting to determine the genuine beneficiary of proposed changes. Clarifying the beneficiary of a legal change takes on increased signifcance when society is trading a fundamental human right like the freedom of expression for an identifed benefit. More often than not it is publishers who are the most vehement advocates for strengthening the monopoly rights of "rights holders." Often these "rights holders" are foreign interests. Canada's film distribution industry, for example, is dominated by American conglomerates.^{Footnote 5} Leaked US cables have shown that the US, beholden to these corporate interests, has exerted substantial pressure on the Canadian government to implement copyright laws mirroring their own.^{Footnote 6} The US copyright regime is widely seen as draconian legislation^{Footnote 7} - the fact that US copyright laws were held up by the drafters of the Consultation as an example of something to emulate is demonstrative of their position on the matter. We can clearly see the effects of a US style system, a system where competition has been virtually eliminated and authors are beholden to gatekeeping publishers: the motion picture industry in the US is now dominated by five studios and in 2007 70% of the music industry was dominated by four record labels^{Footnote 8} (there are now currently only three). Canada needs to be moving away from this model, not towards it. Regardless of the fact that legal rights as laid out in the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights are not extended to corporate entities, the Copyright Act gives significant enforcement powers to institutional parties. Nevertheless, the Consultation envisions giving these corporate interests even stronger enforcement tools to enforce their authors' monopolies against Canadian citizens.

Recommendations include:

1. providing expressly for injunctions against intermediaries "without the need to obtain judgment against the alleged infringer";
2. reducing the burden of proof on a "rights holder" when establishing that any person provided a network service primarily for the purpose of enabling infringement; and,
3. updating criminal copyright offences.

Use of the term "alleged infringer" by the drafters of the Consultation is noteworthy. The document's repeated use of the term is demonstrative that the drafters envision a system where remedies are available without the need for the "rights holder" to prove actual infringement. The Consultation's proponents clearly favour remedies available to rights holders upon the mere allegation breach. This shifting of the burden of proof is a current part of the US law^{Footnote 9} where content is removed upon request, and the citizen is forced to prove his or her innocence before that content is restored. The suggestion that cloaking a Digital Millennium Copyright Act style takedown request in an ex parte "court process," where the corporation has no obligation to prove actual infringement, would somehow provide procedural fairness is a difficult argument to follow. The current US takedown system is rife with abuse.^{Footnote 10}

Not only would the recommendations in the Consultation allow for corporations to shift the burden of proof, it would allow these conglomerates additional powers to effectively imprison Canadians for violating their monopoly rights. That prison should be reserved for the worst offenders in our society is admittedly a matter of some debate. What is important to understand, however, is criminalizing copyright offences effectively shifts the burden of enforcing the rights of these corporations to the state. These "rights holders" already have deep pockets from incomes derived from monopoly rents. They have been granted authors' monopolies by the state. There is no reason why they should not bear the responsibility for the enforcement of these rights. The Consultation paper suggests otherwise. In addition to having the state fund enforcement of "rights holders" monopoly rights, the Consultation paper proposes Canadian Small and Medium Enterprises (SMEs) whose businesses act as intermediaries, share this responsibility for enforcement, including moderating content, issuing takedown requests, removing content and terminating services of their allegedly non-compliant customers. These additional obligations for intermediaries would effectively outsource the cost of policing infringement to the SME's. The red tape this would cause has the potential to lead to a lack of innovation among Canadian IT frms, limiting competition through frm closures and resulting in higher costs for citizens.

Evidentiary Basis

Even assuming that developing a human rights based approach to copyright reform is not open to consideration, and the goal of maintaining the status quo is assumed, there is no evidence that the proposals laid out in the Consultation are anything more than solutions in search of a problem. The cases cited by the drafters, namely Google Inc. v. Equustek,^{Footnote 11} demonstrate the system is working to deliver solutions to "rights holders." Equustek was granted its injunction at first instance. This was upheld on appeal. As the Consultation document highlights, the Copyright Act's provisions already establish both civil and criminal liability for services infringing copyright. Remedies are already available against search engines. The Consultation document notes digital commerce is increasing, but makes no allegation that infringement is increasing along with it. The document certainly offers no evidence that infringement is increasing. The Consultation noted that many "rights holders" submitted they are struggling to make a living from their streaming revenue - there is no comment on if this is supported by evidence, or if what kind of difference the enactment of the suggested reforms would make. The document alludes to the fact that these laws would strengthen the position of "rights holders" but gives no details how jurisdictions that have already implemented similar laws to those being proposed have been impacted by those changes.

Again, it may be helpful to remove the veneer of the obfuscated term "rights holder" and start to talk about "artists" or "authors." If creative Canadians are having difficulty making a living from their art, society should be looking at all options on the table, not limited to authors' monopolies. When returning to our question concerning "Will Canadian society benefit from this change?" taking note of the important contributions Canadian authors of creative works make to our society, we may begin thinking laterally for mutually benefcial solutions. The Consultation notes that Apple and Spotify account for 74% of Canadian "rights holder" payments, apparently for streaming services. The Consultation conveniently omits how much of that amount is allocated to the authors themselves and how much is kept by the record labels. As a result of litigation that recently concluded in the highly publicized US anti-trust case of Epic Games v. Apple, we are aware that Apple takes 30% of every sale made through the company's platform.^{Footnote 12} As of 2015, the cut from the record label was another 47% on top of Apple's cut, leaving the artist with 23% of each sale.^{Footnote 13} These fgures raise some interesting concerns that should be addressed and give society a starting point for research into addressing the issue of adequate author compensation. Alternatives such as tariffs, amendments to anti-trust legislation, more comprehensive enforcement of existing legislation, public funding of Canadian distribution networks, mandated proft sharing and potential caps on publishers' fees should all be thoroughly explored before moving ahead with copyright reform that will be state and SME funded, may result in the imprisonment of Canadians and would threaten freedom of expression.

The Threat to Democracy and to Freedom

Copyright, by its very nature represents a restriction to free expression. In essence, society collectively determines that some limitations on freedom of expression are warranted in order to promote the creation of artistic work. This is the discussion the country needs to have, yet this issue is not addressed in the Consultation.

The Consultation has suggested that the power to de-index websites from search engine results and the power to block citizens access to websites be codifed in statute in a bid to aid "rights holders" in maintaining their monopolies. "Rights holders" in Canada are already in possession of the tools suggested by the Consultation. The power to de-index search results worldwide was affrmed by the Supreme Court of Canada in 2017^{Footnote 14} and the power to block websites nation wide was recently affrmed by the Federal Court of Appeal.^{Footnote 15} What the Consultation appears to be proposing is a streamlined, if not unilateral, method to terminate access to specifc websites together with an immunity from liability when rights holders use this tool inappropriately. This is both inappropriate and dangerous.

Freedom of information is crucial to a healthy democracy. Without unfiltered information the electorate is in no place to make the informed decisions that make democracy possible. Democracy is currently under attack worldwide. That Canadian citizens have access to free flowing information is crucial to the country's democracy. The Federal Court of Appeal has arguably opened a Pandora's box allowing corporate interests to engage in website blocking. The legislature needs to reign in these new powers, not extend them. In Teksavvy v. Bell the Court went so far as to acknowledge the sites it was issuing an injunction to block included "programming far beyond anything in which the plaintiffs have rights".^{Footnote 16} Following this line of argument to its logical conclusion, this ruling raises the spectre of community discussion sites being blocked following the positing of infringing content by a minority of users.

As more and more aspects of our lives move online, an increasingly large number of services will only be accessible online. The COVID pandemic has highlighted this transition with dramatic clarity, with many individuals without internet access being unable to work or receive an education. Even after normalcy resumes, many essential services, including but not limited to government services, may never return to the brick and mortar world. This move to an online existence is one of the reasons why the United Nations Human Rights Counsel has opined that internet access should be a human right.^{Footnote 17} Any suggestion that a breach of a corporate monopoly right might result in the termination of a Canadian citizen's internet services is nothing less than repugnant.

Which brings us back to the question "Will Canadian society benefit from this change?" It becomes incredibly difficult to justify trading the freedom of expression guaranteed under the Charter in exchange for protecting a corporate entity's purely commercial interest. Philosopher Richard Stallman said it best "No company is so important that its existence justifies setting up a police state."^{Footnote 18}