The phrase, ‘designed primarily to enable acts of copyright infringement’ does leave the definition open to broad interpretation, and as such CIMA fears it will be used by those who purposely and wilfully engage in copyright infringement as a means to avoid legal prosecution. In addition, a website that is â€œdesigned primarilyâ€ for selling smart phones, for example, could be enabling the download of music but would not be considered in violation of the new Act, under Bill Câ€11. We encourage the government to amend this section of the Bill to in order to remove any and all vagaries in the language, in part by removing the phrasing ‘designed primarily.’
Should the government grant the music industry’s request, the amended provision would read:
It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known enables acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.
There is virtually no limit to prima facie liability under this provision as most sites can be said to enable some infringement, particularly if they allow for users to post or interact with the site. This includes sites like Google, Facebook, Reddit, and Youtube. All of these sites – indeed virtually any blogging platform, social network, search engine, or website that offers third party contributions – would face the risk of a prima facie claim under the music industry’s vision of the enabler provision.
In such cases, the courts would then proceed to a six part analysis to see whether the site is liable under the provision. I’ve already posted on how a site like Youtube could be caught based on claims currently made by Viacom. Many other legitimate sites would also face liability risk with this expanded provision. The six part analysis includes considering whether the site was used to enable a significant number of infringements, the ability to stop the infringement, the benefits received from the infringement, and the economic viability of the service without the infringement. (two other factors are marketing infringement and significant other uses).
Search engines would certainly face claims that they enable infringement, have the ability to stop it (the music industry often says Google can do more), benefits commercially from the infringement, and would not be viable if it was forced to screen or stop every act of infringement. The same may be true for social networks. Facebook’s IPO document identifies the legal risk from copyright claims outside the U.S. where protection for third-party action is less developed (Canada would be an example of such a country). Sites such as Reddit, that encourage users to post thousands of links to items of interest, may be caught as well given the possibility of a significant number of infringements, the absence of moderation to stop such links, commercial success of the site, and the economic inability to moderate or stop all potentially infringing user contributions.
But the real target here may not be Google, Facebook, or Reddit, even though the risk is real. The more likely target are newer startups that may push the envelope with exciting products and services that the industry may not like. Consider the emerging popularity of Pinterest, which is adding millions of users and already generating discussion about copyright claims. New startups would be particularly vulnerable to these legal risks since venture capitalists may be unwilling to fund them and expensive litigation is typically beyond their means.
The music industry demands do not stop there. The same document calls on the government to extend the private copying levy to include digital audio recording devices. In other words, the industry is seeking millions from Canadian consumers with an iPod tax (an omission from the bill it describes as an “oversight”).
It also wants to extend the term of copyright for musical works from life of the author plus 50 years to life plus 70. The dangers of copyright term extension were extensively discussed on this blog here, here, and here. The music industry proposal would freeze new musical works from entering the public domain in Canada for two decades, mean no new works would enter the public domain in Canada until at least 2033.
In addition to these demands, the industry wants to remove the extension of fair dealing to cover parody or satire, remove the provision protecting user generated content from the bill, create new takedown requirements for Internet providers, and increase the limit on statutory damages for infringement from those found in the bill.
It is striking to contrast the music industry’s extreme demands with the Canadian Library Association, who is seeking just two changes – an amendment to ensure access for the blind is consistent with an international treaty being developed at WIPO and a single sentence to the digital lock provision to allow for circumvention for legal purposes.
The music industry demands necessitate a strong rejection from the government as the massive, radical overhaul of C-11 it is seeking cannot possibly be described as supportive of reasonable copyright reform nor of facilitating the digital economy. Further, it reminds millions of Canadians that they must speak out against these changes and for modest reform to the digital lock rules. Time is of the essence as the Bill C-11 committee plans to conclude its hearing and review of the bill by the end of March.