UN report confirms online copyright infringement should be for courts to decide: Geist

Canadian experts are divided on the recommendations and significance of a United Nations report that linked Internet use to freedom of expression and criticized some countries’ approaches to copyright infringement. The report from Frank La Rue, UN special rapporteur on freedom of expression, released last week, called the Internet a special communications medium for its instant, inexpensive and international capabilities, and said “there should be as little restriction as possible to the flow of information via the Internet, except in few, exceptional, and limited circumstances prescribed by international human rights law.” The report expressed concern about the state censorship of websites and called for the decriminalization of defamation and for states to repeal intellectual copyright laws that could disconnect users as punishment for repeated infringement. The report said “cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.” It identified specific legislative measures like “‘graduated response’, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called ‘three strikes-law’ in France and the Digital Economy Act 2010 of the United Kingdom.” User-rights advocate Michael Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa, said that while the report is “strictly moral suasion” without enforcement, the issue of domestic law violating international law is serious. “It’s pretty clear that there are real political implications, particularly for countries that have already adopted three strikes-type legislation,” Geist said in an interview. Barry Sookman, a copyright lawyer with McCarthy Tetrault in Toronto who represents the content industries, said in an interview that the report expresses the view of one human rights advocate. He said it is not the official position of the UN or the human rights council and that it is not binding on UN member states. Sookman added that the report lacks analysis of the regimes and the legislation it criticizes, and it ignores the balance between reconciling competing values. “The right to be able to protect your property, including your intellectual property, is actually a fundamental right under the Universal Declaration of Human Rights,” he said. “The right to protect your copyright has actually been considered to be a constitutional right in a number of countries.” France’s three-strikes system relies on a series of steps and a tribunal ruling, and the U.K.’s digital economy legislation doesn’t empower ISPs to disconnect users, he said. Sookman pointed to four court decisions—one each in Australia and the U.K., and two in Ireland—that deemed graduated response initiatives a reasonable and proportionate response to file sharing. “One would have thought that somebody who was going to express an opinion would perhaps not only know about these regimes but also know about the case law that has looked at these regimes and found them to be proportionate. I think it didn’t fully consider all of the jurisprudence on this topic,” he said. Sookman added that while he and most ISPs consider the right to Internet access “fundamentally important,” he doesn’t believe it trumps other rights such as not paying service bills or using Internet service to spam. “I don’t think it will change Canadian public policy because I think in Canada we recognize that there’s a requirement to do a balancing. Under the Canadian Charter of Rights, individuals have certain Charter rights, but the Supreme Court has made it clear that, even if you have a Charter right, the next question is whether or not legislation that might impinge on it is justified for a good public policy reason,” he said. But Geist said the report represents a “confirmation” that Canada’s approach to ISP liability is good public policy. Bill C-32, the government’s copyright reform legislation that died on the order paper in March, took a notice-and-notice approach to dealing with alleged infringement. Geist noted that Heritage Minister James Moore has been “very explicit in rejecting three strikes-type systems.” In a speech to the UN Human Rights Council Friday, Carl Bildt, Sweden’s foreign affairs minister, spoke on behalf of Canada and more than 40 other countries in an endorsement the special rapporteur’s report. “All users, including persons with disabilities, should have greatest possible access to Internet-based content, applications and services, whether or not they are offered free of charge,” Bildt said. “In this context, network neutrality and openness are important objectives. Cutting off users from access to the Internet is generally not a proportionate sanction.” France, Ireland, the U.K. and Australia were not among the countries that Bildt spoke for. Australia's Sydney Morning Herald reported Thursday that the Australian government said disconnecting movie and music pirates would not constitute a breach of human rights or international law. A spokeswoman for the Australian attorney general said the government supports an industry-based solution to the problem, adding that no principle of international law states that interfering with Internet access is a breach of freedom of expression. Under a notice-and-notice system, rights holders contact ISPs when they suspect a customer is violating copyright online. The ISP then notifies the customer of the complaint and that the rights holder might pursue legal action. Geist said the evidence suggests that repeated notices are not necessary because the warning system works. “The method of enforcement is exactly what the UN says it should be—for the courts,” he said. “When you’re talking about balancing basic free speech and access to the Internet, it’s not the role and it shouldn’t be the role of an Internet service provider to make determinations about what’s legal and what’s not because it’s often a difficult thing to do. It certainly ought not to be up to the rights holder to make that determination. It falls to a court, and that’s exactly what C-32 envisions and it’s pretty clear that’s exactly what the UN report identifies as the appropriate approach.” The UN report also said that, as an “indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States.” It called on all states to develop policies “to make the Internet widely available, accessible and affordable to all segments of population.” Geist said the Canadian government recognizes the importance of Internet access. “Perhaps this will help bolster the view that within a digital economy strategy, universal access is an absolute must,” he said. But Sookman said competing issues blurred the report’s significance, and that he does not know why it was released last week or what motivated it. “It dealt with a whole variety of issues and it’s hard to know what was the issue that was really driving this to begin with,” he said. “But there clearly are different issues when you think about political expression over the Internet and that being an important point versus graduated response. there doesn’t seem to be any attempt to kind of differentiate them. They’re all lumped in.” mburgess@thewirereport.ca

UN report confirms online copyright infringement should be for courts to decide: Geist

Broadcast | June 9, 2011

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