Status quo on copyright infringement notices unsure as CRIA hints at change

There are hints that legislation may be on the table to codify ISP liability in copyright matters, though Ottawa is mum for the moment on whether Parliament will be asked to deal with it any time soon. Speculation that the federal government may be set to act on ISP liability comes after a story appeared in the Financial Post on September 12. In that article, a TELUS Corp. customer complained that she had received a notice from the telco and ISP that seemed to indicate the company had passed her personal information on to a copyright holder after she used peer-to-peer software to download MP3 files. Government consultationOn June 22, 2001, the departments of Canadian Heritage and Industry Canada released their Consultation Paper on Digital Copyright Issues. With regard to the question of ISP liability, the departments asked the following: Do the current provisions of the Copyright Act already adequately address ISP concerns? Some ISPs and rights holders have entered into agreements for dealing with infringing material. In what respects is this approach sufficient or insufficient?What other intermediary functions that have not been discussed in this section, but that are nonetheless being carried out by ISPs, ought to be considered when developing a policy regarding ISP liability? To the extent that a notice and take-down system is being contemplated, how would such a system affect the framework in Canada for the collective management of copyright? What alternative proposals should be considered? Under what conditions would a compulsory licensing system be appropriate? To the extent that issues surrounding the scope and application of the reproduction right are being examined in relation to Internet-based communications, are there reasons why this examination should be restricted to the question of ISP liability?While TELUS clarified in the article that it was not providing ID information to third parties without a court order, comments by Canadian Recording Industry Association president Brian Robertson seemed to indicate that the current environment for ISPs and copyright holders with regard to subscriber info was set to change.In the Post article, Robertson was quoted as saying: "Perhaps the next step is that we ask for information on individual users. Sooner or later we’re going to be heading in that direction. This is just a stepping stone… It could happen at any time. We haven’t ruled it out." Robertson’s comments seemed to signal a potential change to the current "notice-and-notice" regime in place regarding ISP liability. Under the current system, when rightsholders have information that an individual may have violated their copyright, the owner notifies that subscriber’s ISP, which in turn notifies the person that they may have violated the law - but without identifying that subscriber to the copyright holder or taking steps to pull down an infringing web site or cancelling that subscriber’s service. The Canadian system, in place for more than two years, is in stark contrast to that in the U.S. where, under the provisions of the Digital Millennium Copyright Act (DMCA), Internet service providers can be found guilty of contributory copyright infringement in cases of violation, but they can avoid legal action under the safe harbour provisions of the Act by removing content or identifying users when notified of a violation by copyright holders. The system, dubbed notice-and-takedown, has been eyed by the content industry in Canada as one way to stem its losses to downloaders. But the president of the Canadian Association of Internet Providers says there’s no reason to think the Canadian alternative system will be dismantled any time soon. Acknowledging that discussions are ongoing between industry and the departments of Industry Canada and Canadian Heritage on the issue of ISP liability, Jay Thomson says nothing is settled. "We’re in discussions with (the government) about the whole concept. But we haven’t heard that others have - beyond what we’ve already read through the lengthy process that we’ve had here - that it’s in jeopardy or anything like that. We haven’t heard anything to say anything but that the investigation at the government level continues."But Jay Kerr-Wilson, senior counsel at the Canadian Cable Television Association, says that ISP liability may be on an accelerated timetable from other potential copyright reforms. He tells Canadian NEW MEDIA, "it could be that they’re much closer now to actually having draft legislative amendments. We understand that they’re not going to wait for the review (of the Copyright Act)… Our understanding is that the departments aren’t waiting for the section 92 review to go ahead and start dealing with the digital copyright agenda items that were part of the 2001 consultation period… Our understanding is that work is progressing on some of those issues and that they want to proceed on the short-term goals without having to wait for the June reporting back to Parliament by the committee." The federal government has been looking at changes to the copyright regime in Canada, including potentially bringing it closer in line with the U.S. DMCA legislation, as part of a mandated review of the Act known as the section 92 review. Officials with Heritage and Industry, however, won’t say whether ISP liability could come before Parliament any time soon. Industry’s Albert Cloutier and Heritage’s Bruce Stockfish both tell CNM only that ISP liability continues to be studied and neither gives a timetable for potential changes. Stockfish points out that the broader copyright process faces challenges including putting new members on the Standing Committee on Canadian Heritage when a new government takes over under Paul Martin, the fact that the committee is likely to ask for an extension to begin hearings, and a busy legislative agenda between now and next spring. Last spring, the departments heard passionate arguments against DMCA-style legislation that would create liability for ISPs but with significant safe harbours that could be interpreted as violations of privacy (CNM, April 19/02). At the time, Kerr-Wilson told a well-attended April roundtable: "Don’t make ISPs responsible for a communication because you want to charge them a licence fee, or have them act as an enforcement arm." But Kerr-Wilson now tells CNM that the current notice-and-takedown regime, which is voluntary and not codified into law, will have to change to be codified in some form. "Our position has always been clear that if someone comes to us with a court order to reveal the identity of a subscriber, we have to comply with the court order. And without a court order we’re prohibited from providing the identity of a subscriber. So Brian knows the DMCA doesn’t apply in Canada and we don’t yet have the same sort of summary process for getting the types of subpoenas that the RIAA has been using in the U.S. But, certainly, our position in the 2001 consultation was that we understand that rightsholders should have some sort of expedited judicial process to deal with these issues, but at the end of the day you still need some sort of court order or other judicial process in order to prevent abuse and to protect the rights of our subscribers." He adds: "I guess from our perspective, we always expected that there was going to be legislative amendments flowing from the 2001 process to deal with not only the WIPO treaties, but also ISP liability and sort of what kind of complaints-driven process we’re going to have. We think that’s still the case and we understand that we’re getting closer to the stage where we’re going to see what the legislative amendments might look like."

Status quo on copyright infringement notices unsure as CRIA hints at change

Broadcast | 09/26/2003 4:00 am EDT

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