The Government of Quebec has introduced new legislation that requires Internet service providers to block access to unlicensed online gambling sites. The provisions are contained in an omnibus bill implementing elements of the government’s spring budget, which included a promise to establish website blocking requirements. The bill provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The government’s lottery commission will establish the list of banned websites:
“The Société des loteries du Québec shall oversee the accessibility of online gambling. It shall draw up a list of unauthorized online gambling sites and provide the list to the Régie des alcools, des courses et des jeux, which shall send it to Internet service providers by registered mail.“
According to the law:
“An Internet service provider that receives the list of unauthorized online gambling sites in accordance with section 260.35 shall, within 30 days after receiving the list, block access to those sites.“
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The final Trans Pacific Partnership intellectual property chapter leaked this morning confirming what many had feared. While the Canadian government has focused on issues like dairy and the auto sector, it caved on key copyright issues in the agreement. As a result, works will be locked out of the public domain for decades at a cost to the public of hundreds of millions of dollars. Moreover, the government will “induce” Internet providers to engage in content blocking even where Canadian courts have not ruled on whether the content infringes copyright. As a result (and as expected – this was raised years ago), the government’s “made in Canada” approach to copyright – which it has frequently touted as representing a balanced approach – faces a U.S. demanded overhaul. In fact, even as other countries were able to negotiate phase-in periods on copyright changes, the Canadian negotiators simply caved.
The biggest change is a requirement to extend the term of copyright from life of the author plus 50 years to life plus 70 years. The additional 20 years will keep works out of the public domain for decades. The New Zealand government estimates that this change alone will cost NZ$55 million per year for a country that is one-ninth the size of Canada. Moreover, New Zealand was able to negotiate a delayed implementation of the copyright term provision, with a shorter extension for the first 8 years. It also obtained a clear provision that does not make the change retroactive – anything in the public domain stays there. Malaysia also obtained a delay in the copyright term extension requirement.
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For governments accustomed to wielding their power to regulate local activity, the Internet has long been a source of frustration. From music sites to Uber to AirBNB, online services represent an enormous challenge to conventional government regulation, which typically relies on a jurisdictional hook to compel compliance.
While most reputable global companies can ill-afford to simply ignore laws or court orders, there are still websites that operate largely beyond the reach of government regulation. In response, some governments have attempted to regulate online behaviour, ordering Internet providers to block access to offending websites.
My weekly technology law column (Toronto Star version, homepage version) notes that Canadians have generally been spared website blocking initiatives due in part to the Telecommunications Act, which prohibits carriers from controlling “the content or influence the meaning or purpose of telecommunications carried by it for the public.” That rule means that Internet providers are effectively prohibited from unilaterally blocking content.
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For the past few months, I’ve received daily emails from people who have been sent a copyright infringement notification as part of Canada’s notice-and-notice system. Most of the notifications come from CEG-TEK, a U.S.-based anti-piracy firm. Canadian Internet providers are now required by law to forward these notifications and CEG TEK has been taking advantage of a loophole in the system to include a settlement demand within the notification. Some of the recipients claim that the notification has been sent in error. Others say that they have received multiple notifications for a single download. In some cases, the recipient has clicked on the settlement demand link, while in others the person has called the company and revealed their identity. In virtually every case, they are looking for advice on what to do.
My typical response has been to point to my earlier posts on the issue that have explained Canada’s notice-and-notice system, the misuse of the system by rights holders in sending misleading information about Canadian copyright law, the government’s failure to stop the inclusion of settlement demands within the notices, and the massive expansion in the number of notices with the arrival of CEG TEK. I also point to Industry Canada’s page on the notice-and-notice system, which provides the government’s perspective on the issue. These resources can be helpful, but what most people really want to know is whether they should pay the settlement or ignore it. I don’t condone infringement but I believe that the misuse of the notice and notice system is extremely problematic. Moreover, I certainly think people that did not infringe copyright should not pay a settlement demand. I’m unable to provide specific legal advice, but I can provide more information that may assist in making a more informed decision about a system that was designed to discourage infringement, not create a loophole to facilitate settlement demands.
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The launch of the Canadian copyright notice system earlier this year raised serious concerns as Rightscorp, a U.S.-based anti-piracy company, sent notices that misstated Canadian law and demanded that users pay to settle claims. The misuse of the Canadian system was the result of the government’s failure to establish regulations prohibiting misleading content or the use of notice-and-notice to demand settlements. Despite more than a year of work on potential regulations – including possible costs to rights holders for sending notifications – Industry Minister James Moore abandoned the process, implementing the system with no costs, no limitations on notice content, no restrictions on settlement demands, and no sanctions for the inclusion of false or misleading information. The government’s backgrounder says that the law “sets clear rules on the content of these notices”, however, it does not restrict the ability for rights holders to include information that goes beyond the statutory minimum.
The furor over the Rightscorp notices died down in recent weeks, but now another U.S. anti-piracy firm is flooding the Canadian market with thousands of notices, all seeking payment for alleged infringements. CEG TEK, a well-known U.S. firm, is sending notices that reference Canadian copyright law, but use the notice-and-notice system to pressure recipients into paying large settlements. A blog reader sent along a sample notice posted below (TekSavvy has posted a similar one they received).
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