Canadian wireless players weigh in on FairPlay anti-piracy proposal

The first round of comments are in on the proposed piracy site blacklisting regime

Questions of net neutrality and how best to deter internet piracy are once again taking centre stage in the Canadian wireless industry.

In the initial comment period set by Canada’s telecom regulator, over 110,000 Canadians voiced their thoughts on a website blocking proposal put forward by FairPlay Canada — an anti-piracy coalition led by Bell and including Rogers, Quebecor and the CBC.

The coalition is proposing that the Canadian Radio-television and Telecommunications Commission (CRTC) establish an independent agency called the Independent Piracy Review Agency (IPRA), which would identify websites “blatantly engaged” in content theft.

The proposed regime would be subject to oversight by the Federal Court of Appeal, but there would be no need for a court review prior to issuing a block order.

Currently, copyright holders can go to court to get a takedown order.

The initial comment period ended March 29th.

The CRTC’s website now publicly shows 9,991 comments, while consumer advocacy groups OpenMedia and SumOfUs collectively contributed more than 100,000 comments based on provided templates.

The comments collected by the latter organizations argue, in SumOfUs’ words, that the proposal would “put too much control of the internet in the hands of a few, unaccountable corporations, and would result in sweeping censorship and threaten a fundamental pillar of net neutrality in Canada.”

This is in stark opposition to the views of the many Canadian carriers and corporations that are backing this application, which believe identifying piracy sites would be clear-cut, and is a crucially necessary step.

Below, we’ve summarized some of the key arguments from stakeholders in the matter.

The Coalition

The application itself had the backing of over 25 organizations, including the following: Bell, ACTRA, eOne, Toronto International Film Festival (TIFF), Rogers Media, Quebecor, CBC, Corus, Cogeco, MLSE, Unifor, Academy of Canadian Cinema and Television and Cineplex.

Bell drafted the proposal, an early version of which was reported on by CanadalandBell also suggested creating a piracy blacklist when speaking to Canada’s Standing Committee on International Trade ahead of NAFTA talks.

Bell Media president Randy Lennox stated in a media release alongside the applications: “Digital rights holders need up-to-date tools to combat piracy where it’s happening, on the Internet, and the process proposed by the coalition will provide just that, fairly, openly and effectively.”

Find more statements from the coalition and initial responses from consumer advocacy groups here.

Telus

Though not a member of the coalition, Telus has registered its support for FairPlay through its written intervention.

In its submission, Telus argues the Commission has the expertise to implement the site-blocking proposal, stating: “The proposed regime would not require the Commission to delve into the complexities of determining copyright infringement (and therefore act outside of its expertise).”

The telecom further states that claims the site-blocking regime would lead to censorship are “baseless, and do not withstand scrutiny.” Telus writes that the right to freedom of expression in Canada is not absolute and, furthermore, freedom of expression does not create a right to piracy.

The only “legitimate concern” that Telus notes in its submission is the potential for “over-blocking,” where legitimate websites are inadvertently blocked in addition to piracy websites.

However, the carrier thinks this could be remedied after the fact, a solution that Michael Geist, Canada Research Chair in internet and e-commerce law at the University of Ottawa, doesn’t think freedom of speech scholars would find comforting.

Geist was highly critical of Telus’ submission in a recently published blog post. He countered that copyright expertise is key to copyright blocking analysis in other jurisdictions and says that Telus misstates U.S. law when it references the ‘Notice and Takedown’ regime across the border.

Find Telus full intervention here.

TekSavvy

For its part, voice and home internet reseller TekSavvy was against FairPlay’s proposal.

“If implemented, the Applicants’ proposal for site blocking would fundamentally reshape how Internet services would work in Canada,” writes the company in its submission.

TekSavvy argues that site blocking is at odds with Section 36 of the Telecommunications Act, which states “Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecomunications carried by it for the public.”

Find TekSavvy’s full intervention here.

VMedia

VMedia, a broadcast and internet service provider that has previously tussled with Bell over copyright issues, states in its comments that piracy is an issue that must be fixed but “non-judicial interference by ISPs is not the solution.”

Instead, VMedia proposes that piracy goes down when content is easy to access and less prohibitive in price. The company argued that the consequences of the September 2016 court decision that shut down its live TV streaming service should be overturned by the Commission “before any consideration is given to judicial, let alone private-industry managed, interference with the access Canadians may have to the internet.”

VMedia provided a live TV streaming service that did not require customers to purchase or rent a set top box or internet service from VMedia, but the court’s interpretation of the scope of a broadcasting distribution undertaking license disallowed that.

Find VMedia’s full intervention here.

Shaw

Shaw supports for the FairPlay Canada application, stating that new regulatory tools are needed to fight piracy and FairPlay “provides an expeditious, effective and fair process.”

It also states that the proposal does not infringe on Canadians’ freedom of expression or offend net neutrality.

“The proposed regime would only disable access to websites engaged in illegal distribution of infringed content, when established through a robust evidentiary and hearing process.”

Find Shaw’s full intervention here.

Eastlink

Eastlink, a private ISP and television company that operates on the east coast, believes online piracy in Canada must be stopped but wants to make sure the funding comes from appropriate places.

Eastlink wants to make sure that the cost of regulating online piracy doesn’t fall back on smaller entitites because if companies “are confident that establishing the process under IPRA will result in savings of millions of dollars to them (in the form of increased subscriptions when pirated sites are shut down), then those savings should be more than enough to cover the costs of IPRA.“

The telecom also believes more education is needed around piracy as “many people today who use the internet may still believe that whatever they find on the internet is ‘free’ and where their friends, relatives or neighbours access pirated content, it reinforces the legitimacy of this behaviour.”

Find Eastlink’s full intervention here.

ISED

When the FairPlay Canada initiative was launched, the minister of Innovation, Science and Economic Development Canada, Navdeep Bains, told MobileSyrup via email:

“We understand that there are groups, including Bell, calling for additional tools to better fight piracy, particularly in the digital domain. Canada’s copyright system has numerous legal provisions and tools to help copyright owners protect their intellectual property, both online and in the physical realm. We are committed to maintaining one of the best intellectual property and copyright frameworks in the world to support creativity and innovation to the benefit of artists, creators, consumers and all Canadians.”

Though not a clear-cut stance, the statement seems to indicate the government stands behind its current system for copyright protection.

Open Privacy

Open Privacy is a not-for-profit from Vancouver with a mandate to empower communities through privacy enhancing technologies. Open Privacy stands against Fair Play Canada on the grounds that it is harmful for the internet’s integrity and openness.

Open Privacy also sees a number of other disadvantages that could stem from Fair Play Canada, including, “Internet affordability, stability, respect for privacy, and Canadians’ ability to speak and be heard,” which Open Privacy said in there statement to Fair Play Canada.

Find Open Privacy’s full intervention here.

Internet Society Chapter of Canada

The Internet Society Chapter of Canada is a Not-for-profit that engages on internet legal and policy issues to advocate for an open, accessible and affordable internet for Canadians.

It opposes the act in its comments to Fair Play Canada on the basis that it “is not an application in respect of telecommunications — it is an application in respect of copyright infringement, ” and “it would not serve to enhance the telecommunications system that serves Canadians, but rather restrict certain forms of communication.”

Find the Internet Society Chapter of Canada’s full intervention here.

Canadian Association of Broadcasters

The Canadian Association of Broadcasters is an entity dedicated to representing the interests of radio and television broadcasters in Canada. The association agrees with Fair Play Canada’s act and that online piracy must be stopped.

“Piracy is content theft. It diminishes the value of programming, both acquired and made, and makes it more difficult for broadcasters to monetize their investments in an increasingly competitive global marketplace,” read a statement from the CAB to Fair Play Canada.

In essence the “The broadcasting system is adapting and responding to the challenges created by new legal services. It cannot be expected to do so while also being undermined by illegal services that harm the Canadian market with no effective remedy available,” said CAB.

Find the Canadian Association of Broadcasters’ full intervention here.

Canadian Media Fund

The Canadian Media Fund supports Canadian content, whether in traditional or digital media forms. The Fund agrees with Fair Play Canada’s proposed act because “the theft of digital content by illegal piracy websites has inhibited Canada’s ability to create even more successful and compelling content.”

Find Canadian Media Fund’s full intervention here.

Creative Commons

Creative Commons is a non-profit organization that creates and controls a suite of tools that makes it easier for organizations to share and access non copyrighted materials. It stands against the proposal by FairPlay Canada.

“It is not apparent why online copyright infringement should be dealt with as a telecommunications matter — as opposed to a copyright matter,” writes Creative Commons, adding that this is specifically because “Canadian copyright law already includes significant measures curb copyright infringement of the type targeted by the Bell proposal.”

Find Creative Commons’ full intervention here.

Canadian Cable Systems Alliance

The Canadian Cable Systems Alliance commented on behalf of independent communications distributors across Canada and it supported the application with a few conditions.

While still wanting to maintain a net neutral environment the CCSA said that since piracy has been a growing issue over the last 20 years drastic action like the application from Fair Play Canada must be put in place.

CCSA says piracy is a serious problem in Canada, noting: “This includes the recent proliferation of Kodi boxes loaded with applications which permit the illegal streaming of video content.”

Find Canadian Cable Systems Alliance’s full intervention here.

Canadian Internet Registration Authority

CIRA, a not-for-profit organization best known for managing the .CA internet domain, is against the FairPlay proposal.

CIRA says it supports statements made by Professor Geist and the Internet Society Canada Chapter, including the arguments that the problem of piracy has been exaggerated and existing tools and remedies using the Copyright Act are effective and sufficient.

“The central question is whether the proposed limitations on internet openness proposed by FairPlay can be justified in these circumstances that they seek to remedy. By this measure, we find the proposal wholly lacking and therefore oppose it steadfastly,” writes CIRA.

Find CIRA’s full intervention here.

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