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May 29, 2021

Via E-mail to: copyright-consultation-droitdauteur@canada.ca 

Re: “Consultation on a modern copyright framework for online intermediaries”

We respectfully submit the following comments in response to the Canadian Heritage Consultation on a Modern Copyright Framework for Online Intermediaries:

Pex is the market leader in digital rights management and content identification technology. With its Attribution Engine, Pex facilitates identification of copyrighted works across user-generated content (UGC) platforms and intermediaries for rights holders of all sizes, from major music labels and film studios to independent companies and individual creators. Our system allows content creators, rightsholders, and platforms to solve ownership and licensing challenges in real-time at the point of publishing. Through this experience, rightsholders can dictate how their content is used and earn more revenue, platforms can license and distribute content efficiently, and content creators can legally upload images, music, and video to enrich the online experience. In addition to our copyright solutions, we leverage our technology to collaborate with non-profit organizations and law enforcement to address harmful content such as image-based sexual abuse and child sexual abuse material – proving that this type of technology can address a broad range of complex issues present in the online environment today.

Because we work with platforms, creators, and rightsholders, we look to be neutral partners to all parties, providing information regarding what current rights management technology—from content recognition, attribution, and scaled licensing—can and cannot achieve. Below are our comments on the issues and potential actions raised in the consultation paper.

Potential Action 1: clarify intermediaries’ safe harbor protections

The concept of a safe harbor has had a large impact on the growth of the Internet. Thanks to these protections, platforms have been able to thrive and innovate, providing space for creativity and community building for their users. These platforms have become one of the most important channels for content distribution and have a large impact on what users see and interact with on a daily basis, as evidenced by recent discussion around platform regulation around the world and locally through Bill C-10 (“An Act to amend the Broadcasting Act”). This rapid and expansive growth, however, has also contributed to widespread copyright infringement. Rightsholders do not receive fair remuneration for the use of their works in this online environment, and ongoing reform in the EU and efforts to revamp the copyright framework in the US directly address this imbalance.

In order to achieve the underlying policy objectives to protect and encourage the use of copyrighted content and ensure that the framework works well in practice, it seems prudent to clarify the guidelines and obligations online intermediaries must meet in order to benefit from safe harbor protections. These obligations should be clearly laid out and encourage cooperation among all parties involved to further policy objectives.

Implementation of a “notice and action” system to benefit from safe harbor may work in theory, but may also prove to be cumbersome for all parties involved. This framework would still require a rightsholder to look for and notify every potentially infringing use of their content. With the rate of content creation possible today, where millions of uploads can occur in a single moment, it can be a daunting task for rightsholders who wish to protect their works. Intermediaries will also need a scaled method to receive these notices, determine which action to take, and meet any additional service standards and turnaround time requirements – all while addressing the whack-a-mole reality of another infringing copy popping up on their site soon after, and the cycle repeating itself again. Ultimately, this system, without proper guidance as to implementation and expectation setting on all sides, will result in the back and forth we have seen between rightsholders and platforms for years.

Luckily, the technology to scale the above framework already exists today. For example, Pex’s Attribution Engine, which integrates at the point of content upload, allows platforms to instantly determine what to do with content that includes copyrighted material. A rightsholder can inform the platform in advance whether they want to automatically license, monetize, or block content that contains their copyrighted material on a territory-by-territory basis. The platform can then immediately take action before the content is published on the site. Implementing a solution like this helps bring the “notice and action” system up to speed with current reality.

While the concept of monitoring content at upload may lead some to believe that content may be over-blocked, it is important to remember that the primary goal is to attribute the use of music, film, television, and other materials to remunerate the appropriate rightsholders. Platforms should be obligated to put forth their best effort in identifying content published on their networks in order to benefit from the safe harbor. Encouraging scaled attribution and licensing as such will ultimately enrich the online experience. Rightsholders can preserve the value of their copyrighted works, more content will be licensed and enabled on platforms, and users will be able to share with their communities without worrying what might happen to their content upon upload.  In fact, with attribution and more enabled content, individual creators who depend on these platforms to reach their audience and participate in revenue streams will have the chance to flourish even more, ultimately contributing to overall economic stimulation. To achieve this, rightsholders should also be expected to work with platforms by informing them of which copyrights they own and provide instructions on how their copyrighted material should be protected or licensed. The over-blocking concern must also be addressed through robust safeguards to protect users from bad faith removals or instances where they would like to challenge the action taken on their content. Pex’s complaint and redress mechanism, for example, provides a scaled and neutral process where experts from internationally recognized organizations are available (free of charge to the user in most instances) to facilitate and protect users’ rights.

Potential Action 2: compel remuneration through collective licensing

While encouraging intermediaries to license content is a solution to ensure fair balance and rightsholder remuneration, collective licensing may not be the best solution as it may not adequately represent all rightsholders. At first glance, compulsory collective licensing would seem to introduce efficiency in the process and cast a wider net compared to platforms individually negotiating with rightsholders. There’s no doubt that collective societies play an integral role in the rightsholder ecosystem. However, relying solely on this framework would fail to account for smaller rightsholders or those who are not traditionally represented by collection societies.

An example of a rightsholder who may be excluded from a collective licensing framework would be an aspiring singer-songwriter who writes a song and records themselves performing it in their bedroom – who is every bit the rightsholder as any other person or entity. They send the recording to a few friends who then share the song with others, and luckily the song gains popularity on the Internet. Should this artist be interested in licensing their song for others to use (perhaps an independent filmmaker who uploads original short videos onto Youtube would like to include the song in their video) they may face some barriers as they are unaware of what a collecting society is and how to even join one if one exists for their creative medium.

Relatedly, there are rightsholders who lack a suitable collection society for the type of content that they produce. This group encompasses more than the individual creators, but also major industries like film or gaming. This lack of representation would exclude entire industries of rightsholders who would face challenges in receiving fair remuneration for use of their work.

Technology exists today that would give all rightsholders, big and small, the ability to license their works at scale, irrespective of their creative industry. The same technology also allows platforms to easily work with rightsholders of all sizes and understand what each rightsholder wishes to do with their content. For example, Pex’s Attribution Engine allows for completely free registration of works from the smallest rightsholders (Youtubers and the singer-songwriter in their bedroom) to the largest ones (film studios and record labels). When registering their works in our system, the rightsholder can note their licensing preference for each individual asset, and this information is communicated to all platforms who wish to take part in the system. On the platform side, leveraging the licensing information provided by rightsholders is a matter of simple implementation of a standardized interface. The system identifies content during user upload, and provides the platform with information about all licensed and unlicensed content contained within the upload. Remuneration to the rightsholder is then based on actual data from the match between uploaded content and the rightsholders’ identified asset(s).

Collective licensing structures enable scaled remuneration for rightsholders, especially in the music industry, and play an important role in the overall copyright framework. It is, however, not the only feasible solution available. By leveraging licensing platforms like Attribution Engine, all rightsholders, including those that wish to manage their rights through collective management organizations, and even these organizations themselves, will have the equal opportunity to receive fair remuneration for their work. Proper attribution and licensing protects and reinforces the value of copyrighted works, and rightsholders of all sizes deserve this level of protection. There are many independent creators who get their start in the online environment, and fostering a system where even the smallest of rightsholders can receive their fair share of recognition and revenue will push forward the policy goals of supporting Canada’s creative industries and encouraging consumption. It is our belief that this will ultimately lead to a better experience for all stakeholders, including the users, who will benefit from more transparency and enabled content.

Potential Action 3: increase transparency

We agree that transparency is key in ensuring fair remuneration for rightsholders. Without an understanding of how and where content is being published and consumed, fair remuneration will not be possible. With both rightsholders and platforms leveraging existing technologies like Pex’s Attribution Engine, helpful data is provided to inform a fair remuneration structure. Because Attribution Engine sits at the point of publishing, the system identifies what exact asset is being used in user generated content, and the amount of the content used. Together with comprehensive data from platforms around the content’s popularity through the number of views accumulated or regions of consumption, stakeholders receive a truly holistic view of their content. This information from platforms is key to ensure fair balance, so as long as platforms have identified licensed content in their UGC, they should be obligated to share relevant information with rightsholders. The transparency requirement must be clearly defined, and should include clarification as to what type of information must be tracked, and to whom the information must be disclosed. This level of transparency will ultimately serve the interest of users through fair remuneration. 

Potential Action 4: clarify or strengthen enforcement tools against online infringement

Clarifying and/or strengthening the available enforcement tools for rightsholders will surely be an important step to enhance online enforcement efforts. There should be balance between the interests of the rightsholders, intermediaries, , consumers, and creators, and the tools should ultimately encourage fair remuneration for rightsholders to protect copyrighted content and safeguard further development of the digital market. Additionally, platforms should be compelled to bear responsibility for the reasonable maintenance of what appears on their networks – through the use of the types of technologies available today, this is within reach for every platform of every size.

We thank you for this opportunity to participate in this consultation and provide our comments. At Pex we are intimately aware of the possibilities and challenges of modernizing copyright frameworks. As a neutral third party that works closely with all stakeholders involved in this progress, we humbly offer our knowledge and expertise around solutions that have proven valuable to creators, intermediaries and rightsholders alike. We are always open to providing our knowledge around the capabilities of content identification, attribution, licensing solutions, and dispute resolutions and look forward to any opportunities for collaboration.

Thank you for your consideration.

Respectfully,
Megumi Yukie
megumi@pex.com
Government and Business Affairs
Pex