Chris Brand

Thank you for the opportunity to comment on this issue. I have been involved in Canada's copyright reform efforts since the 2001 consultation. I helped organize the "Petition for Users Rights Under Copyright" which had thousands of signatures tabled in Parliament. I appeared before the Parliamentary committee when they were in BC. I am a software developer by profession, so I create copyrighted works and also have detailed knowledge of the Internet. I have been generally happy with the successive changes to the copyright regime since 2001, although there are obviously some things that I would do differently. It has been particularly pleasing to see Canada take its own approach in many areas, rather than simply following in the footsteps of our neighbours or trading partners. Sadly this current government seems to have taken a wrong turn, forgetting that technological advances have moved copyright from the boardroom into the bedroom of Canadians (because reproduction of copyrighted works is no longer something that requires investment in a printing press but instead something that can easily be done inadvertently). They seems to have reverted to the old model of doing trade-offs between creators and publishers and ignoring the perspective of users. A great example is Bill C-10 where the intent seems to be to treat the Internet as a broadcast medium rather than the communications medium that it really is.

Canada's "notice-and-notice" regime is ground-breaking. Canada took a different approach to other jurisdictions, one that preserved due process for people posting content online, thus protecting the innumerable individual creators who rely on the Internet to distribute their work. It has been cited as a model to be followed by forward-looking organisations elsewhere in the world. The government should be extremely cautious when contemplating any changes to it. I am very relieved to hear that there are no plans to move to a "notice and takedown" (also known as "claim and censor") or "notice and stay-down" regime. It is difficult to overstate the harm done when legitimate online content is removed in error, let alone when it is taken down under false pretenses, both of which seem to frequently occur in other jurisdictions.

Regarding the specific proposals in the consultation document:

4.1.1 It is important to remember that intermediaries are not in a position to judge whether a given piece of online content is infringing or not. They are generally unaware of any permissions that may have been granted through contracts or other licensing, and they are not qualified to make judgements about exceptions such as fair dealing. One issue that often ends up being ruled on by the courts is who actually holds specific rights under copyright to a given piece of content. It is therefore unreasonable to expect these intermediaries to make judgements on the legality of any given piece of online content that they happen to be hosting, caching, or providing a conduit for.

The major intermediaries such as Google, as well as organizations such as the EFF, all document the numerous instances of (US) DMCA notices that have been sent either erroneously or fraudulently. It is unreasonable to expect that any form of notification that might be permitted here to trigger "knowledge of infringement" would be any more accurate than they are in the US. Even a well-intentioned notice from a rights holder necessarily only represents their own position and doesn't include the "other side" that may prevail in a court of law.

This proposed change frankly feels like a move to "notice and takedown" by stealth. If intermediaries were to become liable upon receipt of some form of "notice", they are likely to minimize their own liability by taking down the content. I believe that the only way to know for sure that a given piece of content is infringing is when a court has ruled it so, and thus this is the only reasonable standard for "knowledge of infringement".

4.1.2 My concern here is that I don't want the law to disadvantage smaller intermediaries. Many of the examples given here (optimizing or promoting the content, categorizing it by genre or style, "auto-complete") could be done manually or could be automated, and the larger intermediaries are in a much better position to automate them. I do not believe that codifying "merely technical, automated services" would be helpful. I also suspect that it would be extremely difficult for the legislature to keep up with the rapid rate of change in this area. Overall, I feel that the Copyright Act currently draws this line at about the right place.

4.1.3a As for 4.1.1, this proposal suffers from the flaw that it assumes that rights holders are able to make accurate judgements about whether a given activity is infringing or not. Only the courts can make that judgement, and we must not put intermediaries in a position where they have to accept the word of an alleged rights holder as being presumptively correct, particularly as we know that they frequently are not.

4.1.3b Again it is important to remember that rights holders' claims are just that until proven in court. It may make sense to compel or encourage intermediaries to take action against proven repeat infringers, but I suspect that the courts would not hesitate to include that in subsequent orders against a given user.

While some of the safeguards mentioned might help alleviate some of these issues, they do not overcome the fundamental flaw that a notice from a rights holder will never include the point-of-view of the user in question, even without any "material misrepresentation". Laypeople are not qualified to judge copyright infringement. I further worry that removing the liability of intermediaries for taking down content would again encourage them to err on the side of taking down, which is again a way to bring in "notice and takedown" by stealth.

4.2 The fundamental problem with any such scheme is that the distribution will inevitably skew towards the large entrenched companies and away from the individual creators who produce the vast majority of online content. Any such scheme will also cause intermediaries to prioritise content that is easier to monetise (because their costs are increased), which would over time lead to the Internet looking like yet another TV channel or radio station, to the detriment of everyone. The wonderful thing about the Internet is that anyone can make their creations available for anyone to appreciate and content with extremely limited appeal (and no actual market) can still find an audience. Any compulsory licensing or extended collective licensing scheme would risk destroying that. The government recognized that most hard drives are not used for music and that it would therefore be inappropriate to extend the private copying levy to hard drives. This situation is analogous in that the vast majority of online content is not produced by members of any collective society.

4.3 I don't have strong opinions about this section except that I do feel that it is important for intermediaries to be transparent about the amount of content that is taken down and the triggers for those takedowns. This can help users choose an intermediary. Having said that, it isn't clear to me whether they need to be legally compelled to produce such a report, as many seem to do so without any legal requirement. It is also important for rights management organisations to be transparent with their members. There have been instances in other jurisdictions of such organisations not acting fairly, and the Act does put them in a uniquely powerful position.

4.4.1 I worry that excluding the alleged infringer from the process risks biasing it in favour of rights holders. If this sort of action is added to the Copyright Act, it is important that it is restricted to the commercial-scale activities that the paper claims the government wants to target. "Commercial-scale" would need to be clearly defined to ensure that the mere presence of advertisements on a website, for example, isn't sufficient to cause it to fall into this category. This could be a good opportunity for the government to instruct the courts that any injunctions issued should be restricted to effects within Canada.

4.4.2 No comments.

Overall, I am concerned that while the paper claims that there are no plans to move away from the successful "notice-and-notice" regime, it nevertheless proposes a number of measures that would incentivize intermediaries to take down content in response to notices from rights holders, effectively bringing in a "notice and takedown" regime by stealth. I trust that the government will continue to protect Canadians freedom of expression and the smorgasbord of content that is today's Internet by always requiring a court order to remove online content.

Sincerely,

Chris Brand
New Westminster, BC