Association of American Publishers (AAP)

Via electronic mail: copyright-consultation-droitdauteur@canada.ca

May 28, 2021

Innovation, Science and Economic Development Canada (ISED)
Canadian Heritage

Subject: Consultation on a modern copyright framework for online intermediaries

Dear Sir/Madam:

The Association of American Publishers (AAP) appreciates this opportunity to submit comments on the “Consultation on a Modern Copyright Framework for Online Intermediaries” (Consultation Document).

AAP is the national trade association of the U.S. book and journal publishing industry. AAP represents the leading book, journal, and education publishers in the United States on matters of law and policy, advocating for outcomes that incentivize the publication of creative expression, professional content, and learning solutions.

We welcome these consultations to modernize Canada’s online enforcement mechanisms, to provide rights holders with more effective tools to protect and enforce their copyrights online. Given the nature and scope of online piracy today, Canada has an opportunity to significantly improve the tools available to copyright owners to address online piracy. A framework which provides incentives for online intermediaries to better cooperate with copyright owners in mitigating online infringements would alleviate the current burdens on rights holders and online intermediaries alike.

In our comments below, we address the options as outlined in the Consultation Document.

a) clarify intermediaries’ safe harbour protections against liability for copyright infringement, including how intermediaries’ knowledge of infringement and content-related activities affect their liability as well as their attendant obligations;

As a foundational matter, safe harbour regimes should protect only innocent responsible parties engaged in neutral conduct. Safe harbours should not benefit online intermediaries that would otherwise have been held liable for knowing of and facilitating infringing activity, nor those entities that profit from infringement that they have the right and ability to prevent. Furthermore, while safe harbours may relieve online intermediaries of monetary liability, they should continue to be subject to limited injunctive relief where a court may compel an online intermediary to act to prevent further infringing activity (see discussion under strengthening online enforcement tools).

Online intermediaries whose roles involve more than facilitating the mere transit of content through their infrastructure should be subject to additional criteria against which their eligibility for safe habour protection is assessed. For instance, eligibility for safe harbour protection should be based on an evaluation of whether an online intermediary employs a business model or site structure that attracts or enables infringement, and if so, takes reasonable measures to prevent rampant infringement from occurring on its site or service. Eligibility should also take account of whether online intermediaries are employing available technological measures to combat copyright infringement on their sites.

Online intermediaries should be required to do more than simply pass along takedown notifications for infringing material found online to their subscribers. The Consultation Document references the possible adoption of a “notification and action mechanism.” We note with appreciation that the Canadian government has already taken cognizance of the proceedings in the United States, through which the U.S. Copyright Office conducted a study of Section 512 of the Digital Millennium Copyright Act. We would like to highlight that, as detailed in the Section 512 Report, rights holders noted that the “volume of notices demonstrates that the notice-and- takedown system does not effectively remove infringing content from the internet; it is, at best, a game of whack-a-mole.”^{Footnote 1} While the adoption of such a system would improve the tools currently available to copyright owners in Canada, as has already been shown in other jurisdictions (including in the U.S.) mere adoption of a notice-and-takedown system would be ineffective in addressing the nature and scope of today’s online piracy.

Instead, we recommend Canada adopt a notice-and-staydown regime. Such a framework would more adequately prevent the cyclical re-uploading of previously notified infringing content on to websites, as this routinely occurs in a notice-and-takedown system. Under a staydown regime, an online intermediary — having become aware of infringing content present on its service or website — would be required to act not only to remove or disable access to that infringing content, but also to take such measures as are necessary to prevent the re-appearance of that infringing content on its site or service.

Adoption of a notice-and-staydown regime would not impose upon online intermediaries a general obligation to monitor. Rather, a duty to monitor for infringing activity on their service would arise once the online intermediary is generally on notice that infringing activity is occurring. What must be avoided is a framework that encourages willful blindness in online intermediaries, through the adoption of a system that predicates action solely on actual knowledge of specific instances of infringement, for instance through a notification from a rights holder. The statutory framework should clearly provide that both actual and constructive knowledge will trigger a duty to remove the infringing content for an online intermediary to be eligible for safe harbour protection.

As noted in the Consultation Document, it may be necessary to recalibrate the knowledge standard to determine eligibility for safe harbour protection. The law should make clear that an online intermediary that is aware of infringing activity on its site or service should act expeditiously to remove or disable that infringement regardless of whether actual notice of the infringement from the copyright holder is received. Thus, if a site or service is aware of infringing content on its site, whether through actual knowledge of specific infringements or constructive knowledge of the infringing activity (i.e., from facts and circumstances that indicate or suggest infringing activity is occurring), there should arise an obligation not just to take the infringing content down, but also a corresponding responsibility to take reasonable measures to prevent the re-appearance (re-upload) of the previously identified infringing content. As entities best positioned to prevent infringing activity online, online intermediaries should have an obligation to mitigate the infringing activity occurring on their platforms or networks, and failure to do so should give rise to consequences.

Tools are available today that allow online intermediaries to take appropriate measures to mitigate and prevent infringing activity on their sites. We urge the government to consider requiring online intermediaries to adopt technological measures, such as fingerprinting, filtering, and other content recognition technologies toward this end. These tools enable online service providers to identify infringing content and prevent its reappearance on their site or service, and many are already employed by online intermediaries.

Safe harbour eligibility should also be conditioned on online intermediaries adopting and implementing an effective repeat infringer policy. Such a policy should provide for the “suspension” or “termination” of subscriber accounts that repeatedly engage in infringing activity, in appropriate circumstances, as may be defined by statute. Further, online intermediaries should be required to disclose their implementation of repeat infringer policies, as transparency is critical to evaluating the efficacy of such policies. An effectively implemented repeat infringer policy would also serve as a deterrent to infringing activity for subscribers wishing to avoid suspension or termination of their subscription. We recommend that the statute define, at a minimum, the following:

1. a baseline for the actions of a user that would characterize repeat infringement;
2. criteria for appropriately tracking repeated infringing activity; and
3. protocols for notifying copyrights owners about repeat infringing activity.

Finally, repeat infringer policies should be clearly communicated to the online intermediary’s subscribers.

b) compel remuneration of rights holders through collective licensing of their copyright-protected content on certain platforms;

AAP opposes the imposition of a collective licensing regime for online intermediaries as a purported solution to the problem of online piracy. Copyright owners, as holders of the exclusive rights of reproduction and distribution, are the rightful party to control when and how they exploit their works. While collective licensing of secondary uses may be an important element in the structuring of rights holder remuneration, its proposed application to online piracy is not an appropriate remedy to redress unauthorized or infringing uses. Further, compelling publishers to license to online platforms would constitute undue government intrusion into the private sector, given that how publishers choose the parties through whom they distribute their works is very much a rights holder decision.

c) increase transparency in rights holders’ remuneration and online uses of their content; and

While a proposal to improve transparency with respect to how rights holders’ content is used online as well as the remuneration received for those uses is generally welcome, we reserve further comment for legislation addressing this issue. We do agree that the proposal might best be addressed to platforms or online intermediaries that have already concluded agreements with rights holders. Nonetheless, merely increasing transparency would be insufficient in addressing online piracy. It remains the case that rights holders should be free to determine whether and when they will utilize a particular platform to serve as a distributor.

d) clarify or strengthen rights holders’ enforcement tools against intermediaries, including by way of statutory “website-blocking” and “de-indexing” regime.

AAP welcomes Canada enhancing rights holders’ enforcement tools against online infringement. In particular, the adoption of a no-fault injunctive remedy, or website blocking, would provide rights holders with an effective, and efficient, tool to address infringing activity facilitated by offshore pirate sites. Website blocking — already employed in some 42 jurisdictions around the world — has been shown to have a disruptive effect on blatant pirate sites. We note that this remedy may be structured as a judicial or administrative process through which rights holders may make an application to a court or administrative agency for an order enjoining an internet service provider to block subscriber access to sites engaged in facilitating access to infringing content. Website blocking has been effectively used by rights holders in several countries in the European Union, as well as in the United Kingdom, and the procedures employed in these jurisdictions should prove instructive as a model.

As the Consultation Document notes, the legal basis for website blocking already exists under Canadian law, with such orders having been granted by Canadian courts through their equitable jurisdictions. However, we agree that establishing the remedy through statute would be helpful to provide clarity regarding the requirements for bringing an application, as well as the scope of the remedy.

AAP also recommends that courts be empowered to grant limited injunctive relief, to compel online intermediaries, if their business is predicated on attracting and facilitating unauthorized uploading and re-uploading of copyrighted works, to take the necessary action to prevent further infringing activity. We recommend this entail, for instance, preventing the re-upload of specific works that have already been subject of a prior notification. Online intermediaries can comply with such limited injunctive relief by adopting commercially available technological measures that can, with reasonable effort, aid in preventing re-uploads.

Conclusion

AAP appreciates the government’s consideration of the views expressed in this submission. The comments above address over-arching considerations in establishing an online enforcement framework that is better suited to addressing the nature and scope of today’s online piracy. We also appreciate the opportunity to provide our views in this process and welcome a similarly transparent process for the review of specific legislative proposals that may be drawn up for enactment. We look forward to further interaction on this matter, and if there are any questions or if we can provide additional information, please do not hesitate to contact the undersigned.

Sincerely,

M. Luisa Simpson
SVP, Global Policy