As CRTC rejects FairPlay, proposal could move to legislative reviews

The CRTC has no jurisdiction to implement a system to block websites allegedly engaging in piracy, it said in a highly-anticipated decision Tuesday, cracking open another debate as to whether the federal government will consider doing so flush in the middle of its reviews of related legislation. Certain sections of the Telecommunications Act “do not contain explicit language conferring copyright jurisdiction on the Commission,” the Tuesday decision read. “The creation of new copyright remedies under the Telecommunications Act in the absence of clear statutory language would conflict with Parliament’s intent in creating an exhaustive copyright code in the Copyright Act,” which the government is currently reviewing, the CRTC said. Insight about how the government could tackle the issue can be gleaned from its previous positions, according to one academic, including how it views the effectiveness of the country’s notice-and-notice system -- upheld in the new North American trade pact in the face of pressure to adopt a United States-like notice-and-takedown system -- and how parliamentarians understand the issue of net neutrality. “In the NAFTA agreements, they held onto this notice-and-notice system...and that’s the closest analogy to give you some insight into what the Canadian government is right now thinking about with this type of copyright action,” Carleton University PhD candidate Ben Klass said in a phone interview. Under the previous Conservative government, Parliament rejected the idea of implementing a notice-and-takedown system, which FairPlay tried to distinguish from its initiative to the CRTC. The Liberal government has chosen only to tweak the notice-and-notice system. The government’s support of notice-and-notice, Klass said, shows how it’s prioritizing copyright infringement problems and represents a “solid indicator” as to whether it will consider site blocking. Klass and Carleton professor Dwayne Winseck filed an intervention in the case, echoing others in suggesting that the CRTC had no jurisdiction to adopt such a system. The number of submissions ran in the thousands, a vast chunk from individuals, which appeared after internet advocacy group OpenMedia urged Canadians to oppose the application. In its analysis, the CRTC acknowledged “piracy results in harm to the Canadian broadcasting system and to the economy in general.” It indicated there are other avenues through which the issue could be examined, including the government's ongoing reviews of the telecom, broadcasting, and copyright acts. Shan Chandrasekar, president and CEO of the Asian Television Network International Ltd., which represented the FairPlay group, said in an emailed statement that the decision provides Canadian content creators with “little recourse when it comes to protecting their work from illegal content piracy, most of which originates in foreign jurisdictions beyond the reach of Canadian copyright law.” However, because it’s now shifted in the direction of Parliament, “we look forward to working with the federal government to strengthen legal protections for content creators in its review of the Copyright Act,” including modernizing criminal provisions and enhancing copyright enforcement, he said. University of Ottawa law professor Michael Geist said in a blog post on his website that the CRTC decision hit all the right notes, but he concluded that Bell “will surely continue to pursue its proposal in alternative venues.” The new USMCA trade agreement, he noted, does not include anything on site blocking and said the “thousands of Canadians” who submitted interventions to the CRTC “may need to speak out yet again” in the coming months. The highly-divisive debate has raged since BCE Inc., a member of the FairPlay group, proposed a similar idea at a committee hearing just over a year ago. That system would feature a list of offending websites, compiled by an administrative agency overseen by the CRTC, that ISPs would be allowed to block. Technically, the government can find a way to implement such a blocking system, Klass said. However, the problem, he added, is that it’s “sufficiently unpopular and on balance not proportionate to the cause they’re pursuing with cultural policy that I don’t see them actually doing it.” Another potential stumbling block the proposal faces in front of the government is how it’s viewed relative to net neutrality. The notion that all content on the internet should be free from interference has been interpreted by some MPs as a concept under threat from the FairPlay application. That’s what happened when Liberal MP John Oliver brought forth a motion, later passed unanimously by the House of Commons, in February of this year that contemplated enshrining net neutrality into law. When parliamentarians came to debate the issue, some raised FairPlay as an application that threatens that concept. Oliver’s motion was later adopted by the government as the guiding principle of the reviews of the telecommunications and broadcasting act. Oliver told The Wire Report in an earlier interview that the idea of blocking sites is “incredibly dangerous” and infringes on net neutrality principles, though he said he did not support pirated content. Klass said if MPs agree, that may make it less likely Parliament goes through with the proposal. But he noted that the relationship between the complex net neutrality issue and FairPlay isn’t as “clear cut as just, it violates net neutrality.” He said he hopes that a politician looking at the blocking approach would see it as an unbalanced approach. The distinction between legal and illegal content, which is solely what FairPlay says it aims to eliminate, is what Barry Sookman, an intellectual property lawyer at law firm McCarthy Tétrault, said is where the crucial distinction lies. As such, he said he doesn’t believe the concept of net neutrality will be relevant if the government decides to look at the blocking idea -- pointing to multiple jurisdictions around the world who consider net neutrality a concept that deals exclusively with legal content. He also said FairPlay proponents will need to continue to ensure that the government has all the facts. “It’s undoubtedly true that the initiative to have website blocking won’t go away in terms of how it will happen; there’s a number of different vehicles for it to happen,” Sookman said, adding the prevalence of piracy and its negative impact on businesses will ensure the issue doesn’t go away and “shouldn’t go away. It’s really a matter now of what the government will do in order to put in place modern laws that are fit for the 21st century.” He noted that the decision comes in the middle of the copyright review, which provides a “galvanizing argument for the committee to deal with it and to do something -- or at least to make recommendations -- that would move it forward.” — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

As CRTC rejects FairPlay, proposal could move to legislative reviews

News | 10/02/2018 11:20 am EDT

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