TekSavvy

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TekSavvy’s submission to Innovation, Science and Economic Development Canada regarding its consultation on a modern copyright framework for online intermediaries

I. Introduction

TekSavvy Solutions Inc. is pleased to submit the following comments in response to the Government of Canada’s Consultation on a Modern Copyright Framework for Online Intermediaries (the “Consultation”). TekSavvy is an independent Internet service provider (“ISP”) based in Chatham, Ontario and Gatineau, Quebec. It is Canada’s largest independent ISP and has been providing Canadian consumers with wireline broadband Internet services since 2002. It appreciates the opportunity to provide its feedback on the various proposals, particularly from its perspective as an independent ISP that does not simultaneously have an interest as content creator.

In making these comments, it is critical to keep the affected rights and interests of any proposed revisions to Canada’s current copyright regime at the forefront of our minds. Those interests are not simple – they hang in a delicate balance, and proposals which may advance some of these interests may result in unreasonable intrusions into others. While by no means an exhaustive list, some of the issues at stake include:

  • Promoting fair remuneration for rights holders. A key objective of the Consultation is to ensure that copyright owners are adequately compensated for their works, in order to ensure that Canada’s creative industries remain sustainable and incentivized to create content.
  • Safeguarding individual rights and freedoms, including freedom of expression and privacy rights. Uncompromising enforcement of copyright can result in intrusions into individuals’ legitimate rights and freedoms. For example, unchecked or overbroad enforcement tools can inadvertently affect legitimate, non-infringing content, jeopardizing the freedom of expression of both the creators of that content and that of users in accessing and engaging freely with it. Obligations that require ISPs to actively monitor and supervise traffic on their networks, or to pass on potentially invalid infringement notices, reduce protections for individuals’ privacy.
  • Fostering novel forms of online competition. Overbroad or overly burdensome enforcement, compliance or monitoring obligations risk stifling the growth of smaller and innovative intermediaries. Promoting remuneration for rights holders must not serve to entrench the positions of existing market leaders and deter entry or expansion from other intermediaries.
  • Upholding the principle of net neutrality. Traditionally, ISPs have served as neutral, common carriers of network traffic. They are not permitted to control the content or influence the meaning of telecommunications carried for the public. This role is particularly important given that many major Canadian ISPs are also themselves significant rights holders, and should therefore not be charged with controlling the content available to consumers. Indeed, the House of Commons’ Standing Committee on Industry, Science and Technology expressed recognized that net neutrality must be given “paramount importance.”Footnote 1

The balance of these interests is fundamental to crafting any new copyright policy. As a general theme, making incremental changes, rather than sweeping reforms in several areas, can help ensure that we have a chance to understand the implications of these policy changes in an evolving digital economy, reducing unwanted outcomes and allowing stakeholders to assess if harsher enforcement measures or larger reforms are in fact warranted.

With this in mind, TekSavvy is in favour of making small improvements to the existing framework for intermediaries in Canada. These improvements include clarifications to the notice-and-notice regime and the implementation of a compulsory and/or extended collective licensing regime for certain intermediaries. Further, while it is not in favour of site-blocking as an enforcement tool, given that the federal courts have thus far recognized site-blocking injunctions as an option within their discretion, TekSavvy submits that it might be preferable to establish a statutory framework for these types of injunctions, one that appropriately balances stakeholders’ interests. TekSavvy views further changes—including the imposition of a knowledge standard for ISPs or the introduction of further enforcement mechanisms—as both unnecessary and ill-advised; these would result in significant changes to the current model, including altering the role of the ISP from a neutral carrier to one required to engage in active enforcement and adjudication of the rights of third parties. Fundamentally, these changes also simply would not be effective in promoting the goals described above.

II. What solutions would be effective in promoting fair remuneration of rights holders? 

As noted in the Consultation, promoting fair remuneration of rights holders is the central goal that the Consultation hopes to advance. In considering all proposed changes to the Copyright Act, it is important that the chosen solutions be ones that will not only balance the other issues at stake, but also that they will be effective in ultimately advancing this goal. There is a body of research that has shown that attempts to block access to infringing content do not directly translate to increased consumption of content from legal sources and thus increased remuneration of rights holders. Instead, research shows that solutions that promote diverse, convenient, and affordable access to legal sources of content are the best solutions for increasing rights holders’ compensation for their content.

Studies show that blocking access to infringing content is unsuccessful in achieving this goal

Shutdowns are ineffective. Taking down individual platforms is ineffective in reducing consumption of unlicensed content. Platforms that are taken down may quickly re-emerge elsewhere, or consumers may simply move on to an alternative platform. The first common example of this is the shutdown of the peer-to-peer sharing platform Napster in July 2001. Following its shutdown, users simply moved on to multiple next generation platforms such as LimeWire, BitTorrent, Morpheus, and Gnutella.Footnote 2 In a study on the effect of the shutdown of an unauthorized video-streaming website in Germany, researchers concluded that the intervention “was not very effective in reducing unlicensed consumption or encouraging licensed consumption, mainly because users quickly switch to alternative unlicensed sites”, and in fact found that after the shutdown, the unlicensed market became more fragmented, making it even more resilient to subsequent shutdowns.Footnote 3

Not only are shutdowns ineffective at reducing consumption of unlicensed content, but even if they do have this effect in part (even temporarily), it does not necessarily translate to a boost in the consumption of licensed content—and thus any increase in compensation for rights holders. In an example of the shutdown of Megaupload in January 2012 by the U.S. Department of Justice, research found that the shutdown in fact had an average negative effect on the box office revenues of a majority of movies. Only movies that were subject to a wide release benefited from the shutdown.Footnote 4 The research posited that this was as a result of content from illegal sources generating positive externalities about the quality and existence of lesser known films.Footnote 5 Large blockbusters may be able to compensate with large advertising budgets, while word-of-mouth is likely more important for movies with lower budgets.

As a result, even if there is a temporary disruption in some consumers’ access to infringing content as a result of a shutdown (before they move on to other platforms), a shutdown still will not necessarily have a positive effect on the average rights holders’ remuneration. Large scale shutdowns instead risk disproportionately benefiting large and popular creators and stifling the reach of smaller creators, reducing the diversity of content that reaches consumers.

Site-blocking is similarly ineffective in reducing consumption of unlicensed content. Research has also concluded that blocking access to individual websites has little or no effect on consumption from unlicensed channels, as people can easily circumvent the blocking injunction or move to alternative websites.Footnote 6 A study of the court-ordered blocking of the Pirate Bay website in the UK in April 2012 for example showed it had only a small impact on total copyright infringement and no impact on paid legal streaming.Footnote 7

There are several reasons that website-blocking is ineffective in reducing consumption of unlicensed content. The blocked websites themselves can simply reappear using a different domain. For example, in the recent site-blocking injunction in Canada in Bell Media Inc. et al. v. GoldTV.Biz (“GoldTV”)Footnote 8, the list of websites that the Federal Court ordered ISPs to block was updated three times over 15 months as a result of domain and sub-domain changes. Consumers can also move on to alternative websites, much as in the case of shutdowns described above. Beyond that, in the most commonly employed form of blocking, DNS de-indexing, network control avoidance tools such as Virtual Private Network services and Domain Name System over HTTP (DoH) allow even those consumers with limited technical knowledge to bypass blocked sites, also rendering the act of site-blocking ineffective.

While research does suggest that simultaneously blocking a large number of websites could be at least temporarily effective in reducing the consumption of unlicensed contentFootnote 9, this increases the corresponding risk of stifling legitimate content. Website blocking orders carry a real risk of blocking not only legitimate content on the websites hosting the impugned content, but also of inadvertently extending the block to unrelated websites. For example, in July 2005, TELUS blocked access to a website that was being operated by its unionized employees with whom it was in an ongoing labour dispute. This site blocking inadvertently affected access to 766 unrelated websites.Footnote 10 With increased volume and scope of blocking orders, this risk becomes more acute. While the recent site-blocking injunction in GoldTV did not result in any apparent site blocking, it was done at a very small scale compared to what would be contemplated by a streamlined, statutory regime for site blocking. As the United National Special Rapporteur on the promotion and protection explained, “website/application blocking is almost always a disproportionate means of achieving this aim [of copyright enforcement]”.Footnote 11

These risks illustrate that if blocking is only effective in reducing consumption of unlicensed content when sufficiently large numbers of websites are simultaneously blocked, then it is also potentially only effective when the infringement on freedom of expression is the greatest. It is difficult then to use site-blocking in a measured and limited way, that minimally curbs free expression, while also achieving the intended purpose.

By contrast, access to affordable and accessible legal content will advance this purpose

By contrast, research suggests that consumers are willing to pay for legal content and to abandon unlicensed content where legal content is affordable and convenient to access.Footnote 12 For example, a study observed a decrease in consumption of infringing music in the Netherlands between 2008 and 2012, while consumption of infringing films and TV content almost doubled in the same period; the authors linked these opposite trends to the emergence of adequate legal services for downloading and streaming music (in particular Spotify) and the corresponding absence (at that time) of equally satisfactory services for audio-visual content.Footnote 13 Other research showed that ABC’s decision to add its content to Hulu decreased consumption of that content through illegal sources by an estimated 15-20% compared to content from CBS, CW, and Fox which was not added to Hulu.Footnote 14

In addition to capturing (and monetizing) this subset of demand for convenient and lower cost access to content, these solutions also have the benefit of preserving some of the positive demand-generating benefits that research has speculated unlicensed content provides, including boosting the reach of lesser known content, and increasing consumption of complementary products or content, like concerts or merchandise.Footnote 15 These positive externalities also serve to increase the overall remuneration of copyright holders.

As a result, policymakers ought to shift their focus from repressive approaches to tackling online infringement towards policies and measures that foster lawful remunerated access to copyright-protected content.

III. Licensing schemes would promote affordable, diverse, and convenient access to legal content

With the above conclusions in mind, TekSavvy is in favour of the proposed possible licensing schemes contained in the Consultation. These licensing schemes would allow certain types of intermediaries to host some rights holders’ content without needing to negotiate individual licenses, in exchange for payment of set royalties. The Consultation contemplates both a compulsory licensing scheme and an extended collective licensing scheme.

Ensuring remuneration through collective and/or compulsory licensing schemes would seem to achieve the goal of increasing affordability and convenience of access to legal content. Consumers would benefit from convenient and potentially innovative ways of accessing legal content and, based on the research above, rights holders would benefit from increased compensation and a reduction in consumption of unlicensed content.

Type of licensing scheme

As an ISP, TekSavvy is not necessarily best placed to offer guidance on crafting the most effective licensing scheme—whether that be an extended collective or compulsory licensing scheme, or some mix of both. TekSavvy is generally of the view that in principle the simplest solution, with the fewest regulatory steps and hurdles, is preferable. A compulsory licensing scheme would appear to best meet these criteria. However, both proposed solutions would appear likely to promote affordable and convenient access for consumers and to advance the intended goals for rights holders and creators.

Types of subject intermediaries

The definition of intermediaries in the Consultation is very broad. It is TekSavvy’s view that any licensing scheme should be restricted to certain types of intermediaries, both in terms of function and size.

Only intermediaries that store and provide consumers with access to copyrighted content ought to be subject to a licensing scheme. More neutral intermediaries, like ISPs, do not have any control over the content that appears on any individual website, and do not generate revenues based on the content of individual websites. As a result of their safe harbour protections under the Copyright Act, the mere provision of any means of telecommunication of copyrighted content through the Internet does not constitute an infringement of that copyright, and ISPs would therefore not otherwise be required to obtain copyright licenses in their role.Footnote 16 Moreover, charging ISPs royalties would amount to a tax on the internet that would simply be passed on to consumers—even those who do not access any websites hosting copyrighted content.

TekSavvy is also in favour of applying licensing schemes only to hosting intermediaries of a certain size, whether based on revenues, number of users, or some other measure of economic ability. Such a threshold would help ensure that innovative new platforms are not prevented from growing due to excessive compliance costs, preventing the licensing scheme from unintentionally entrenching incumbent intermediaries. Again, as an intermediary that does not compete in this space, TekSavvy has no particular feedback on the appropriate threshold for achieving this balance, and considers that wide stakeholder feedback will be important to finding the right threshold.

Reduction in need for enforcement measures

As discussed above, increasing the affordability and convenience of accessing licensed copyrighted content can be expected to reduce consumption of unlicensed content. As a result, a licensing scheme that promotes these goals is also likely to have the effect of reducing the need to seek remuneration after the fact or to seek repressive enforcement measures.

IV. Updates to the “notice and notice” regime

When the “notice-and-notice” provisions under sections 41.25 and 41.26 of the Copyright Act came into effect, TekSavvy expended significant resources to develop systems to receive and process the many thousands of notices it can receive in a given week or even day. TekSavvy also litigated several ambiguities in the process to gain clarity, incurring significant legal costs in the process. Other ISPs encountered many of these same challenges. Following these years of work, the notice-and-notice regime generally functions well, serving its purpose of striking the balance between the interests of both rights holders and end-users.

Any new obligations or major changes to the regime would pose an additional burden on ISPs for a system that is generally already achieving its intended goals. For this reason, TekSavvy is not in favour of any major changes to the regime, including any alterations to the knowledge standard of ISPs, or any increased enforcement obligations on ISPs. As discussed below, however, TekSavvy is in favour of minor tweaks or clarifications to the current statutory scheme, to ensure it functions optimally and predictably.

Implementing a cost for forwarding notices

Under subsection 41.26(2), the Minister has the power to make regulations allowing ISPs to charge up to a maximum amount to forward notices. The courts have held that ISPs are able to charge for their work in responding to a Norwich order but to date the Minster has not set any amount for passing on notices. The work involved in developing notice-and-notice systems, forwarding notices, retaining customer information as required, maintaining the system and responding to customer queries is significant. ISPs—despite being neutral parties to the underlying copyright dispute—currently bear the full cost of this service. Even a small fee per notice would help alleviate some of the costs on ISPs. Further, given the increasingly large volumes of notices that ISPs receive, a fee per notice would also have the added benefit of disincentivizing abuses of the system by sending large volumes of notices.  

Enhanced protections regarding non-compliant notices

Another area where clarity is needed is with respect to the passing on of notices that are non-compliant with the Copyright Act. Under subsection 41.25(3) of the Copyright Act, notices are prohibited from containing certain content, including settlement offers or demands for payment. Nonetheless, some notices continue to include this content, which can be intimidating to consumers. In theory, under subsection 41.25(3), notices containing prohibited content should be considered invalid, and ISPs should not be forced to pass these on or preserve the associated identifying information. However, TekSavvy is not able to automatically screen notices for this prohibited content. As it can receive thousands of notices in a single day TekSavvy must process the notices automatically and cannot manually screen them for prohibited content.

In order to give full effect to subsection 41.25(3), the Copyright Act could be amended to either include some monetary penalty for sending prohibited notices, or to clarify that a claimant is prevented from pursuing any claim or Norwich order in the event that the notice contained prohibited content. Further, given the practical difficulty in both complying with its obligations to preserve and forward notices and screening all notices for prohibited content, the Act should be amended to as to clarify that ISPs will not incur any liability (including under any other statutes, such as privacy or anti-spam legislation) for preserving subscriber information or passing on notices in cases where the notice is later determined to have contained prohibited content.

Clarifying ISPs’ liability for statutory damages

The Act currently provides for statutory damages of not less than $5,000 and not exceeding $10,000 in the event that an ISP fails to perform its preservation and/or forwarding obligations. As currently drafted, there are a number of serious issues with this provision. First, there is debate amongst stakeholders as to whether these damages are assessed on a per claimant, per compliance failure, or per individual notice basis. If these damages were assessed for each individual notice, the potential liability to ISPs – who can receive thousands of notices a day – would be disproportionate. Considering the notice-and-notice system is designed to shield ISPs from liability for the underlying copyright infringement, it would be inconsistent to impose statutory damage awards on ISPs that could greatly exceed any damages available to the claimant in the underlying copyright infringement case. As there is no limit in the Act to the amount of notices that a copyright holder can submit for a given instance of alleged infringement, damage awards which are assessed on a per notice basis as opposed to a per claimant basis would also encourage copyright holders to send needlessly high volumes of notices for the sole purpose of increasing their potential damage awards.

Further, given the large volume of notices that ISPs receive (which necessitates an automatic system for processing them) and the technical impossibility of ensuring a 0% error rate in any automated system processing large volumes of data, there will inevitably be some compliance failures. It is therefore unreasonable to impose a minimum damage award of $5,000 without some consideration of the ISPs’ overall compliance efforts and history. This could lead for example to damages in situations where an ISP’s system correctly processes 99 out of 100 notices, but due to an error in the format of a notice, or some technical glitch, fails to process one notice of those 100. Extrapolating this over the large volume of notices ISPs receive, this could result in hefty damage awards against ISPs despite a high degree of effort and cost in maintaining their systems. Instead, subsection 41.26(3.1) ought to be amended to remove the minimum damage component and to include objective criteria for assessing the statutory damages applicable to a given case. It should, for example, recognize a due diligence defence, where an ISP will not be liable for statutory damages as a result of a failure to perform its preservation and/or forwarding obligations despite taking all reasonable steps to ensure its compliance.

V. Establishing a statutory framework for injunctions against ISPs would enhance certainty for all stakeholders

As described above, extended collective or compulsory licensing schemes should reduce the amount of unlicensed content consumed, thus reducing the need for severe enforcement mechanisms. TekSavvy is of the view that this reduction in the demand for unlicensed content, together with the existing notice-and-notice regime which serves as an educational and warning system to users against consuming unlicensed content, ought to avoid the need for harsh and ineffective enforcement mechanisms like site-blocking injunctions.

With that said, the Federal Court of Appeal has recently affirmed the federal courts’ jurisdiction to issue site-blocking injunctions against ISPs in some circumstances.Footnote 17 Its analysis with respect to the appropriateness of such an injunction, however, considers only one possible scenario—in which the defendants have apparently taken efforts to remain anonymous and where the court is convinced that the defendants would ignore enforcement measures, including injunctions, directed against them. This leaves doubt as to the approach applicable to other scenarios, including where the defendant is known to the rights holder or would not appear to be outside the reach of a Canadian court. In addition, the blocking order in the GoldTV case was issued as a product of an adversarial process that is ill-suited to carefully consider the technical and social complexities of such an issue. In light of this decision, a statutory scheme setting out a more clearly defined process for seeking site-blocking injunctions, including specifying the considerations that must be weighed, would appear beneficial in creating more certainty for all stakeholders involved.

In TekSavvy’s view, it would be important for such a statutory scheme to contain the following elements:

  • Instrument of last resort. The party seeking an injunction should be required to demonstrate that it has sought other means of enforcement, in order to reserve site-blocking for only those limited cases where other enforcement attempts have been unsuccessful. These could include, for example, demonstrating that the rights holder has made attempts to locate and engage with the site owners and to undertake enforcement actions directly against the site owners. Put another way, the court ought to be convinced that alterative and less onerous measures were not effective. This consideration would be similar to the consideration required under subsection 41.27(4.1) of the Copyright Act in seeking injunctions against search engines: the availability of less burdensome and comparably effective means of preventing or restraining infringement. However, in recognition of the third-party respondent nature of ISPs in such injunctions (unlike under section 41.27, where the search engine is the alleged infringer), as well as the issues with site-blocking’s effectiveness and overbreadth described above, the onus should be on the party seeking the injunction to establish that other means of enforcement were not effective. This would help ensure that site-blocking orders do not become the default enforcement mechanism but are instead reserved for extraordinary cases.
  • Judicial oversight. As noted above, ISPs should not be left to assess the validity of copyright infringement claims, and nor should the mere receipt of claims automatically allow a party to obtain a site-blocking injunction. Instead, any statutory injunction scheme ought to require judicial approval of an injunction. This is consistent with the Committee Report’s recommendations, which noted that it is “for the courts to adjudicate whether a given use constitutes copyright infringement and to issue orders in consequence.”Footnote 18
  • Technical clarity. The statutory scheme should be clear with respect to the technical type of blocking that is required of ISPs, rather than suggesting ISPs use whatever means necessary to block a website. For example, typically DNS de-indexing is the commonly applied form of blocking. However, it is easily circumvented through various technical workarounds, including the use of alternative freely available DNS servers or VPNs. Despite these possible circumventions, the statute should be clear that ISPs are not responsible for taking additional more invasive blocking steps, which impose even greater burdens on ISPs. IP blocking for example requires expensive equipment that many ISPs would not already use. Blocking based on content or blocking specific protocols would require deep packet inspection, an invasive and advanced type of monitoring network traffic that would impose highly burdensome monitoring requirements on ISPs, would require specific equipment, and would entail violations of the privacy of customers. The statute should be clear which type of blocking is required of ISPs, to avoid incurring liability for not taking all possible blocking steps.
  • Clarity as to which party has the obligation to update the list of blocked sites. As noted above, site-blocking carries a real risk of blocking legitimate content and stifling freedom of expression. It also is ineffective when websites are able to reappear under new domains. As a result, any list of domains subject to a blocking order will almost certainly need to be revised for currency and accuracy. The statutory regime should clarify that ISPs are not responsible for maintaining the list, or liable for any inadvertent blocking of legitimate content. Instead, the parties seeking the order must take reasonable steps to ensure that the list remains accurate and to identify issues of inadvertent blocking.
  • Consideration of the burden imposed on the ISP. Similar to the factors listed with respect to injunctions against search engines under subsection 41.27(4.1)(b) of the Copyright Act, the scheme should expressly require the court to consider the burden that the injunction would pose on the ISP, including the aggregate effect of the injunction together with any other site and application blocking injunctions in effect for that ISP, as well as the technical feasibility and effectiveness of the proposed blocking in addressing the infringement.

VI. Other changes to the treatment of ISPs as neutral players or added enforcement mechanisms are not necessary

TekSavvy is in agreement with the Consultation’s premise that significant changes to Canada’s basic model of intermediary liability should be avoided. In TekSavvy’s view, there is no need to revisit the liability of ISPs with respect to copyright. As set out above, collective and/or compulsory licensing schemes should reduce the demand for unlicensed content, thereby addressing the copyright infringement problem at the source. This reduction in consumption of unlicensed content would in turn reduce the need for repressive enforcement measures.

This system, together with the existing notice-and-notice regime which serves an additional educational function for consumers, strikes the appropriate balance between ensuring fair remuneration for creators and safeguarding freedom of expression in an open internet. Given the time it has taken ISPs to develop procedures for ensuring compliance with the notice-and-notice regime, and the importance of limiting any incursions on freedom of expression, large reforms to ISPs’ roles and functions are not advisable. As with any provisions which risk infringing Charter values, it is important to take the minimally intrusive path to achieving the desired goal. As a result, an incremental approach ought to be taken in introducing reforms to the Act. Introducing a new licensing scheme and assessing its effects for a period of time should be a starting point. Only if these measures do not adequately achieve their goals should we consider the need for other reforms.

Imposing a knowledge standard on neutral intermediaries such as ISPs would be unreasonable

The Consultation considers situations in which an intermediaries’ actual or constructive knowledge could serve to exclude its safe harbour protections. For example, intermediaries could be presumed to have actual knowledge of an infringement following receipt of a notice of claimed infringement, or could be found to have constructive knowledge where they ought reasonably to have known of the infringement in the circumstances. Any such changes would in themselves impose on ISPs duties to monitor and control traffic on their networks, contrary to their role as neutral intermediaries including under the “common carriage” principle enshrined in section 36 of the Telecommunications Act. Moreover, these would result in significant costs to ISPs in investigating, monitoring and assessing the claims—costs which would then be passed on to consumers and pose a material burden for many smaller ISPs.

For example, the mere receipt of a notice of claimed copyright infringement does not automatically translate to actual knowledge of an infringement—such a claim is merely one party’s position and is untested in court. As a result, rather than accepting a claim at face value and taking a drastic step of suspending or cancelling a subscribers’ internet access or taking some other enforcement action, TekSavvy would first need to investigate the underlying facts of the claim and engage in a fact-specific assessment. This type of assessment would not only be time intensive for an ISP (as it would be impossible to automate a nuanced assessment), but would likely require it to introduce new monitoring tools of its subscribers’ activities so as to have adequate facts before it in assessing any claims, posing not just a high cost but also a privacy concern for subscribers.

Moreover, such a task would leave the ISP with the discretion to cut off subscribers from what is now an essential service, or to block access to websites, without any judicial oversight and contrary to the principle of common carriage, including under section 36 of the Telecommunications Act. These types of decisions ought to only be made by a proper neutral adjudicative body and are not consistent with the role of ISPs as impartial intermediaries. We note for example that the Committee Report specifically urges Parliament and the courts to be “particularly careful that the preservation of net neutrality and of the rights of all parties, including those of the public, are fully considered.”Footnote 19 The Committee Report makes evident the possible conflicts of interest or biases that could otherwise arise without judicial oversight, providing an example of a situation where one vertically integrated ISP–rights holder seeks an injunction that would apply to another ISP–rights holder, who would gladly provide it with little contest given their mutual interests as rights holders. In such situations, the Committee Report found the “risk for overreach is obvious.”Footnote 20

Enacting new enforcement obligations for intermediaries would similarly fundamentally alter the role of an ISP

Additional obligations contemplated in the Consultation, such as notification and action mechanisms, or mechanisms for dealing with repeated alleged infringers similarly would put the ISP in the role of adjudicator and fact finder, and pose an unreasonable burden on ISPs due to the resource-intensive monitoring, fact gathering and assessment this would require. Without these active steps, the system could be open to abuse, as a subscriber could be cut off from an essential service merely through the receipt of multiple notices of claimed infringement, even where they contain errors or misleading information. Rectifying these types of issues after the fact, such as by imposing damages for misleading or incorrect notices, would not adequately counterbalance the seriousness of a subscriber unjustifiably being cut off from an essential service.

VII. Conclusion

TekSavvy appreciates the opportunity to provide its comments on the Consultation and hopes continue to provide feedback and engage as the discussion advances.