Bell copyright ask draws criticism, as others point to precedent

BCE Inc. has said it thinks Canada can tackle piracy by mandating that internet service providers (ISP) block websites with pirated material from being seen by subscribers through an administrative agency. “An independent body without any sort of judicial oversight is insane,” Allen Mendelsohn, who teaches internet law at the Faculty of Law at McGill University, said in a phone interview. “It’s not a court hearing evidence...that’s the issue more than anything.” Mendelsohn is one of a few experts who have come out to question Bell’s proposal, which was made last week to parliamentarians studying a renegotiation of the North American Free Trade Agreement (NAFTA). The third round of talks is taking place in Ottawa this week. “We would like to see measures put in place whereby all internet service providers are required to block consumer access to pirated websites,” Robert Malcolmson, Bell’s senior vice-president of regulatory affairs, said Wednesday. The block would apply to a “blacklist of egregious piracy sites” that would be put together by an administrative agency vested with the powers of enforcement and a body like the CRTC to oversee it, Malcolmson said, arguing that global piracy has made a home in Canada. Mendelsohn said this would effectively upend the user-rightsholder balance attained in 2012, when the Copyright Modernization Act was passed, and shift it to the rightsholder. That legislation eventually spawned the notice-and-notice system, which has been lauded by some as a model system for balancing rights. Seated next to Malcolmson during the committee appearance was Pamela Dinsmore, Rogers Communications Inc.’s vice-president of regulatory for cable. She said NAFTA is no document to slip copyright issues in, and instead suggested that they be taken up during the five-year review of the Copyright Modernization Act in November. She added that using a trade renegotiation, where copyright issues can be used as “bargaining chips,” instead of through the copyright review “could endanger this delicate balance” between rightsholders and uses of copyrighted works. In a blog post, University of Ottawa law professor Michael Geist remarked that Bell’s website blocking system would be “unlikely to ever garner public or policy support.” “Indeed, it seems likely that the only way Canada could end up with a mandated website blocking system overseen by the CRTC would be to cook it up in a trade negotiation,” Geist said. Academic Ben Klass, who initially raised the complaint that would eventually lead to the CRTC’s zero-rating decision, said Bell’s suggestion is “flagrantly self serving.” He said while Bell the network operator should be indifferent to the traffic that runs on its network, Bell the media operator is also trying to protect the rights of those properties under its control. “Bell cannot simultaneously claim to be an innovative competitor, on the one hand, and ask for government protection from market forces to such an unprecedented extent on the other,” Klass said. But Barry Sookman, an intellectual property lawyer at McCarthy Tétrault LLP, said the suggestion isn’t unprecedented, when you take into consideration developments in such jurisdictions as Europe and Australia. “This is not the first time that this has been thought about,” Sookman said in a phone interview. In those places, “there has long been jurisdiction to block true pirate websites.” “So this is actually in line with both the policy of removing pirate sites and it’s also consistent with what our trading partners do,” Sookman said. He added that courts in some jurisdictions in Europe have the authority to make orders, while in other jurisdictions on that continent, a tribunal can exercise a quasi-judicial role to make these decisions. Those orders are also enshrined in an article in the E.U.’s Copyright Directive, which states that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” The idea of blocking websites or pirated material is not new. Earlier this year, a United Kingdom court allowed a soccer league to effectively block computer servers that host and deliver unlicensed content to set-top box applications (STB). Moreover, Sookman said evidence has been presented to show blocking orders have been effective. “In other words, they have reduced the prevalence of users going to pirate sites and have increased the purchase of legitimate content.” And while Malcolmson suggested blocking would be “the only way to stop” this kind of piracy, Sookman said it is but one “very important arrow in the quiver.” He added that Canada has provisions to target specific sites operating within Canada, but the challenge is foreign sites, such as the elusive Pirate Bay. Malcolmson further suggested that Canada could use a criminal provision for any infringement of copyright, “including facilitating and enabling piracy where it’s undertaken for a commercial purpose.” This, Geist noted, would “dramatically expand the prospect of criminal liability for infringement,” including non-commercial activity, which “could conceivably capture a wide range of common activities.” Laura Tribe, executive director at internet advocacy group OpenMedia, said in an email that the proposal would more likely than prevent privacy “see individuals censoring what they do and say online, fearing criminal repercussions for innocent actions,” which could put a chill on online expression. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Bell copyright ask draws criticism, as others point to precedent

News | 09/26/2017 6:03 pm EDT

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