Shaw Communications Inc

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Submission of Shaw Communications Inc. to Innovation, Science, Economic Development

Consultation on a modern copyright framework for online intermediaries

Introduction

  1. Shaw Communications Inc. (Shaw) appreciates the opportunity to submit this brief to Innovation, Science and Economic Development in the Consultation on a Modern Copyright Framework for Online Intermediaries launched by the Honourable François-Philippe Champagne and the Honourable Steven Guilbeault. We are submitting this short brief in addition to our participation in and endorsement of the positions set out in the submission of a large group of internet service providers (ISPs), prepared and submitted on their behalf by Fasken Martineau DuMoulin LLP.
  2. These submissions are provided from Shaw’s perspective as an ISP. In this capacity, Shaw is engaged with the Copyright Act (the Act) as a passive online intermediary, falling under the safe harbours applicable to network services (s.31.1(1)) and caching (s.31.1(2)-(3)). The Act’s protection of ISPs from copyright liability related to the content they transmit and cache in the provision of fixed and mobile broadband internet access services is foundational to upholding net neutrality and protecting the rights and interests of Canadians as citizens and consumers, including freedom of expression and privacy online. The exceptions applicable to ISPs are also critical to enabling innovation and investment in advanced digital networks and services, and supporting Canadians’ access to high-quality, secure, and reliable connectivity at affordable prices, all of which is ultimately essential to Canada’s long-term economic growth and success in the digital economy.
  3. Shaw’s comments address the Consultation Paper’s (the “Paper”)Footnote 1 options for reform related to the Act’s safe harbour protections, including proposed changes to the knowledge standard for eligibility, and obligations for qualifying intermediaries. As described in this submission, Shaw urges the Government against the proposals to: (i) narrow the scope of the safe harbour exceptions, as they apply to ISPs; and, (ii) impose “notification and action mechanisms” or “mechanisms for dealing with repeated infringers” on ISPs. At a high-level, Shaw is concerned that the proposed options for reform – if applied to ISPs – would come at the expense of:
    • a free and open internet that respects Canada’s commitment to net neutrality and Canadians’ freedom of expression and privacy interests; and
    • the attainment of Canada’s telecommunications objectives, including to: “render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada”Footnote 2; “encourage innovation in the provision of telecommunications services”Footnote 3; and “contribute to the protection of the privacy of persons.”Footnote 4  
  4. If applied to ISPs, several of the proposed options would limit Canadians’ very access to the internet in response to mere allegations of infringement activity and inappropriately place ISPs in the role of determining whether to limit, suspend, or terminate services of an “alleged infringer”. Such measures would be directly contrary to the Paper’s objective of ensuring that Canadians “are able to use the Internet to access information efficiently as well as communicate and share with each other as freely as reasonably possible.”Footnote 5 Moreover, it is critical to consider that the internet is increasingly being relied on for all aspects of Canadians’ daily lives – beyond merely to “communicate and share with each other” but to access education, jobs, as well as government services, including health care and public safety services. ISPs should only be compelled to terminate Canadians’ internet access under the Act in response to a decision by a court of competent jurisdiction, where the allegations of copyright infringement have been substantiated, individuals’ procedural fairness rights have been upheld, and a proportionate response is ordered by the Court.  
  5. Beyond commenting on the Paper’s proposals, Shaw provides recommendations to remedy abuses of the Act’s Notice-and-Notice regime (ss.41.25-41.26) in order to protect consumers and ensure the efficiency of the framework. These include: (i) imposing penalties on rightsholders that include settlement demands in notices of claimed infringement; and (ii) prescribing the form of rightsholders’ notices by regulation.

The knowledge standard for eligibility to rely on safe harbours

  1. Shaw strongly opposes the introduction of a mandated knowledge standard in connection with ISPs’ eligibility under the safe harbour exceptions. The Paper notes that introducing a knowledge standard would require “greater attention by intermediaries to potential infringements facilitated by their services,”Footnote 6 without specifying what actions an intermediary with actual or constructive knowledge of potential infringements would be required to take to avoid liability.
  2. Shaw respectfully submits that any requirement for a knowledge standard is inconsistent with ISPs’ role as passive intermediaries and would undermine users’ privacy and access to a free and open internet. Moreover, while the Paper indicates that it could be “clarified that there would be no general obligation of hosts to monitor all or almost all of the data relating to their users to prevent or stop any future infringement”Footnote 7, any requirement to infer knowledge in certain circumstances, such as upon receipt of a notice of claimed infringement (as proposed by the Paper), would require ISPs to investigate the online activities of hundreds of thousands of Canadians each month: this would be prohibitive from a resource perspective and would have deleterious impacts on ISPs’ provision of affordable and accessible network services.  Furthermore, any potential mechanism to mitigate ISP costs related to monitoring or investigation through automation (e.g. the automatic suspension of internet access for subscribers receiving notices) would be equally untenable in the context of user rights.
  3. Beyond potentially infringing user privacy and undermining Canadians’ access to the internet, from an ISP perspective, a knowledge standard would translate into excessive costs, both to implement a system in order to maintain eligibility under the safe harbours, and as a result of excessive litigation and damages to which such a requirement would give rise. These costs under the Act would increase the cost of connectivity for consumers and decrease investment and innovation in digital networks.

New obligations for qualifying intermediaries

  1. Shaw is also strongly opposed to any imposition on ISPs of the Paper’s proposal for new obligations to combat or deter infringement, which include:
    • Notification and action mechanisms; and
    • Mechanisms for dealing with repeated alleged infringers.
  2. Both proposals would impose on intermediaries the obligation to: (i) investigate claims of alleged infringement (the associated problems with such investigations, discussed above) and (ii) apply a remedy “according to the intermediary’s judgment rather than required by the Act.”Footnote 8 The Paper provides, as possible consequences for users in connection with both mechanisms (i.e. notification and action, as well as repeat infringer mechanisms), for the intermediary to limit, suspend, or terminate the provision of their services to the alleged infringer.
  3. Shaw is strongly opposed to any enforcement measures that require ISPs to: investigate Canadians’ internet use; limit their online expression, except where required by court order or in egregious circumstances that exceed private commercial interests (e.g. internet child exploitation); or interfere with Canadians’ access to the internet in response to mere allegations of infringement. Similar to the introduction of a knowledge standard under the safe harbour exceptions, these enforcement measures would compel ISPs to move beyond a passive role and into the lives of Canadian internet users. While there may be non-passive online intermediaries for which these proposed enforcement measures are reasonable and proportionate (e.g. a social media service), imposing these mechanisms on ISPs would be in direct conflict with the Paper’s stated objective of “safeguarding individual rights and freedoms in an open internet”Footnote 9 and ensuring that individuals’ “freedom of expression and privacy interests are not unduly limited, such as through erroneous or misguided copyright enforcement efforts.”Footnote 10
  4. The Paper states that these measures could also “save parties from unnecessary litigation by facilitating private solutions appropriate for individual cases.”Footnote 11 Shaw respectfully submits that Canadians’ access and use of the internet should not be determined through a system of obligations on ISPs under the Act to develop “private solutions” implemented in response to mere allegations of infringement.

Improvements to the Notice-and-Notice Regime

  1. The Notice-and-Notice regime has been successful in raising awareness of and mitigating suspected copyright infringement.Footnote 12 Unfortunately, abuses have emerged that the Government should address through minor amendments in order to: protect consumers; prevent the establishment of a litigation-based business model directed at ISPs by certain rightsholders; and ensure the efficient administration of the regime. 
  2. Certain claimants include “settlement demands” in their notices, attempting to extract payments from ISPs’ subscribers ranging from $200-$10,000, with threat of legal action.Footnote 13 The Government attempted to address this mischief in the Budget Implementation Act (BIA),Footnote 14 which added: i) a prohibition against including settlement demands in notices;Footnote 15 and ii) a qualification that ISPs’ obligations related to notices only apply where the notice complies with this prohibition.Footnote 16 While Shaw appreciates and is aligned with the Government’s commitment to addressing this form of anti-consumer abuse of the regime, these amendments effectively shifted responsibility for rightsholder compliance upon ISPs, essentially requiring ISPs to perform vetting on all notices, placing a disproportionate and impracticable burden on ISPs.
  3. The Government can fully address this abuse by introducing a monetary penalty payable by rightsholders for sending notices containing settlement demands. Shaw submits that such an approach would more effectively achieve the BIA’sintended objectives, by deterring abuses, while maintaining the appropriate roles and responsibilities of rightsholders and ISPs within the operation of the regime.
  4. Shaw also urges the Government to enact regulations to prescribe the form of rightsholders’ notices, namely, that notices must be submitted electronically and in compliance with the Automated Copyright Notice System (ACNS) industry-standard format.Footnote 17 Certain large-scale copyright holders have demanded the manual dissemination of unformatted notices, imposing significant and unnecessary costs on ISPs to fulfill their notice obligations. Left unaddressed, this will increase consumer costs and could, where processing such claims results in oversights, expose ISPs to unreasonable claims for statutory damages on the basis that they have failed to fulfill their obligations under the regime. Such abuse is inconsistent with the intention of the Notice-and-Notice regime, negatively impacts Canadian internet users, and should be prevented by the proposed amendment.

Conclusion

  1. Canada’s Copyright Act has achieved an appropriate balance between creator and user interests, including with respect to the role of ISPs as passive online intermediaries. Limitations on exceptions applicable to ISPs would impose new costs on Canadians; undermine investment and innovation in the digital economy; and disrupt the policy objectives established within the overall legislative framework governing copyright and other legal regimes, including telecommunications. 
  2. Shaw appreciates the opportunity to file these comments in the Consultation on a Modern Copyright Framework for Online Intermediaries.

Sincerely,

Cynthia Rathwell
Vice President, Legislative & Policy Strategy
Shaw Communications Inc.