OTTAWA MULLS BLOCKING PIRACY WEBSITES
The federal government is considering a controversial move to allow internet service providers to block websites that show pirated movies and TV shows.
The government launched a consultation document Wednesday that proposes a number of options to crack down on online content that infringes copyright in Canada.
“This is something you can safely say is going to receive a lot of pushback,” said Laura Tribe, executive director of internet advocacy group OpenMedia.
According to a 2018 government report, pirated content is accessed by 26 per cent of online Canadians. And when a website-blocking proposal was unsuccessfully floated three years ago thousands of Canadians complained to the CRTC that it was an attack on net neutrality and free expression.
The goal of the consultation is to ensure that those who hold the rights to the content “are able to obtain fair remuneration for protected uses of their content online,” the paper outlined. Heritage Minister Steven Guilbeault said in a press release the Canada needs “a more up-to-date framework to ensure more accountability and better remuneration and transparency.”
Innovation Minister François-Philippe Champagne said in the release the consultation aims to “strike the balance between facilitating broad, lawful access to copyright-protected content, and safeguarding individual rights and freedoms in an open internet.”
The government launched the consultation “to hear the diverse perspectives of stakeholders, from online intermediaries to those holding copyrights, as well as any Canadian who wants to share input,” he said.
Options the government is considering include requiring intermediaries, a category that includes internet service providers and online platforms, to block access to infringing content, or limit, suspend or terminate access to their services for infringers. It suggested both implementing a court process that would oversee such actions, and “notification and action mechanisms” in which decisions would be “made according to the intermediary's judgment rather than required” by legislation.
“This is internet policy being pushed by broadcast interests,” and a conflict of interest that will lead to overreach, Tribe said.
That's because some of Canada's biggest internet providers are vertically integrated companies whose media divisions are rightsholders to content.
“If you look at a company like Bell, they are predisposed to believe something is a violation of copyright if it is their copyright they think is being violated,” she said.
She added that the fundamental principle of net neutrality “is that these are supposed to be common carriers. They're supposed to carry all content equally until it is proven to be illegal.” Having companies decide what is good and bad, “is very different, particularly when they have such conflicted business interests,” Tribe said.
A website-blocking proposal was put forward three years ago when a coalition of broadcasters and groups representing the production sector asked the CRTC to implement a regime that would block access to infringing content. The “FairPlay” coalition included the media divisions of vertically integrated companies that are also ISPs and TV service providers, including Bell, Rogers and Quebecor. It estimated the cost of piracy to TV providers amounted to $500 million a year, lowering their contributions to production of Canadian content by between $11 million and $25 million annually.
The application drew strong opposition from internet advocates and many Canadians, about 141,000 of whom signed petitions against the proposal, which the CRTC ultimately concluded wasn't in its jurisdiction.
The consultation document released by the government Wednesday suggested implementing a court process that could result in orders to block websites or remove them from search engine results, orders to remove content and orders to “limit, suspend or terminate access” to service.
The court would be available “in at least certain cases” without first having to obtain a judgment from the court against those infringing content and without having to include them as a party in the court proceeding.
In 2019, Federal Court ordered ISPs to block a copyright infringing site, GoldTV, for the first time. That decision is currently in appeal.
The consultation document also outlines ways legislation could put more responsibility on intermediaries to be aware of and fight such content. Intermediates are currently subject to “safe harbour” protections from liability in cases where they “merely provide the technical means by which others infringe copyright.”
The consultation paper proposed changes to those protections, by “compelling greater vigilance of intermediaries against potential infringements facilitated by their services.” It also suggested imposing additional obligations on intermediaries “either as conditions on their safe harbour protections or standalone measures.” Those obligations could include requirements to take down content or cut off the infringer's access to the intermediary's service, it suggested, with intermediaries making the call whether to take such actions. Such mechanisms would have to be documented, and “easily accessible and understandable,” it said.
Carleton University professor Dwayne Winseck said in an interview that putting obligations on ISPs to prevent or stop infringement is “fraught with difficulties” because it leaves them as the “judge, jury and executioner.”
He added that the involvement of vertically integrated companies “in which one division of the shop would be reporting a possible infringing site to another division with the same shop, recommending that it be blocked, is hugely problematic.”
Another option suggested by the paper is a compulsory licensing scheme in which intermediaries like social media platforms would pay royalties to rightsholders, which would apply to large, for-profit online platforms that host user-uploaded content.