On the first day of this month, Canada officially adopted a new system for handling cases of copyright infringement. In this system, commonly referred to as “notice and notice”, a copyright holder has the right to send a notice to an internet service provider (ISP) informing them that they believe there has been unauthorized access to their content. The ISP is to then forward the notice to their customers. The rationale is that the customer has a chance to voluntarily stop the infringing behaviour upon such notice and avoid penalty. With its implementation, the Copyright Modernization Act (Stat. of Canada, 2012, c. 20) is now fully in force.
Background
This is not the first time the issue of copyright has been covered in the Iron Warrior. This act of Parliament was the culmination of over a decade of attempted copyright reforms by the Martin and Harper governments. An earlier draft of this act was criticized in this publication by Savio Tsui (SE Class of ’09). Tsui objected that it would be illegal to use any technology which could be used to break copy protections (DRM), even for something as innocuous as carrier-unlocking your phone or creating a backup of a legally-bought film for personal use, and that there was no cap on penalties for infringement. More recently, similar legislation in the USA (Stop Online Piracy Act) was the subject of a PCP in January 2012. Anish Bhutani (Chemical ’12) defended the proposed copyright bill on the grounds that rampant piracy was removing incentive for people to innovate, perform music, or write books, while (now A-Soc exec) Josh Kalpin deemed it flawed, as it was unlikely that its stated goals could be achieved, while the U.S. government would gain the power to take websites down for infringements.
The proposed Copyright Modernization Act was amended several times in Parliament in response to public pressure. It was finally passed in 2012 to mixed reviews. On the one hand, it allowed otherwise infringing actions for the purposes of education, parody, and satire, so you would be allowed to post copyrighted assignment questions online for your classmates, and putting a “How it should have ended” video for your favourite movie online would also be legal. Some of Tsui’s concerns were assuaged, as fines for infringement were capped at $5,000, provided you didn’t try to sell pirated stuff for profit, and breaking a digital lock to unlock a cell phone was explicitly made legal. On the other hand, the digital lock provisions remained, with Industry Minister James Moore suggesting that the market would decide the fate of DRM (essentially, if Canadians really didn’t like that provision, they could just put their money where their mouths are and boycott digitally locked products).
“Notice and Notice” System
While the other provisions of the Act had gone into force in 2012, the “notice and notice” system for handling copyright infringement was delayed until this January. In theory, it is fairly simple. Suppose a guy makes a copyrighted movie available on Bittorrent, which was produced by XYZ Studios. If XYZ Studios notices this, they can take the IP address of the person who shared the film, look up the ISP it belongs to, and ask them to pass along a warning notice to the user who has that IP address. However, XYZ Studios is not allowed to demand that the ISP shut off the user’s Internet access or take down their website, if the infringing material is posted online. This contrasts with American law, which has a “notice and take down” provision. Also, the ISP is not allowed to tell XYZ, “The offending user is Mr. John Doe of 123 Front St, Waterloo”. Furthermore, search engines are explicitly protected against lawsuits for merely revealing the location of copyright-infringing material.
When the user receives the notice, they can choose to remove the offending film voluntarily. If not, then further warnings can be sent. If XYZ Studios feels its warnings are getting ignored, then they can go to court. If they can convince a judge that the offender has been ignoring their warnings, then the judge can order the ISP to reveal who the offender is, and a civil lawsuit begins. So long as John Doe didn’t try to make money off the illegally shared movie(s), the maximum fine is $5,000. Commercial infringement, on the other hand, carries penalties up to 5 years in jail and $1,000,000 in fines.
Early Scandals
On January 9, barely a week after the new rules came into effect, the Toronto Star published an article claiming that American IP firm Rightscorp had been abusing the new rules to send legal threats in their warning notices (which ISPs are now required to pass on to consumers). It was claimed that Rightscorp threatened to sue an offender for $150,000 and shut down their Internet service unless they agreed to pay $20 as an out-of-court settlement. This is merely a bluff, as the loss of Internet service or fines over $5,000 as penalties are not legal punishments under the Copyright Act, and in fact Rightscorp isn’t even allowed to obtain the offender’s name without a court order.
The government and ISPs have already taken notice. James Moore has announced that the government is taking action to ban these false warnings, which effectively amount to extortion. Some ISPs, including TekSavvy, have announced plans to warn their users about the bad warning notices.
Evaluation
According to Moore, the Copyright Modernization Act is a “made-in-Canada” (translation: not like those crazy Americans) law which will balance the rights of copyright holders and consumers. Certainly, if the law works as advertised, the nightmarish scenario Kalpin envisioned in 2012 will be avoided, since the wholesale taking down of websites is not a punishment. But not everyone is completely happy, such as Michael Geist, a law professor at the University of Ottawa who brought the alleged Rightscorp scandal to light. He opined that the law was better than similar laws in the USA, but remained worried that a trade agreement Canada is currently negotiating with the Americans might soon cause us to back down, and move towards an American-style takedown system.
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