Post Tagged with: "notice and notice"

copyright takedown notice by Andrew Allingham (CC BY 2.0) https://flic.kr/p/bw9zNC

The Trouble with the TPP, Day 4: Copyright Notice and Takedown Rules

The Trouble with the TPP series focuses today on the TPP’s effort to regulate how Internet providers and hosts address allegations of copyright infringement on their networks and sites (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension). The goals of the U.S. and Canadian government in the negotiations were clear from the outset: the U.S. wanted to export its DMCA notice-and-takedown system to the rest of the TPP, while Canada wanted to preserve its newly created notice-and-notice approach (more on the notice-and-notice system, which does a better job of striking a balance and preserving user privacy, here). In fact, Canada rushed through the notice-and-notice system without regulations (causing major problems of misleading notices) in order to argue that it should not be required to adopt the U.S. approach.

The end result is a compromise that allows Canada to maintain notice-and-notice, but no other TPP country can adopt it in order to comply with the ISP liability and notice rules. The Canadian rules can be found in Annex 18-E, which states that the standard TPP ISP rules do not apply to a country that meets the conditions of the annex “as from the date of agreement in principle of this Agreement.” Since that date is now long passed (October 4, 2015), no other TPP country can implement the notice-and-notice system to meet its TPP obligations. It should be noted that Chile, which objected to the special treatment for Canada, obtained a similar exception for its system based on the U.S. – Chile Free Trade Agreement in Annex 18-F.

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January 7, 2016 5 comments News
copyright takedown notice by Andrew Allingham (CC BY 2.0) https://flic.kr/p/bw9zNC

Why the TPP Creates a Backdoor Copyright Takedown System in Canada

The 2012 Canadian copyright reform law featured several “made in Canada” provisions that the Conservative government touted as striking a better balance than rules found elsewhere. At the top of the list was the notice-and-notice system for Internet providers.  Minister James Moore (then of Canadian Heritage and later Industry) specifically cited the Canadian system as an example of how Canada had “rejected the American style approaches on massive parts of our legislation.” Yet a close reading of the leaked version of the Trans Pacific Partnership intellectual property chapter suggests that Canada may just have agreed to establish a copyright takedown system.

The preservation of the notice-and-notice was a top copyright priority for the Canadian government, so much so that it caved on copyright term extension and implemented digital lock rules that were widely criticized by the Canadian public. However, the negotiators may have failed to keep a notice-and-takedown system out of Canada. Section I of the copyright chapter creates a U.S. style notice-and-takedown system. The Canadian solution was to create a special annex that provides an alternative to the U.S. approach. While the annex was designed specifically for Canada, it would appear that it fails to prevent copyright takedowns from coming to Canada.

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October 13, 2015 6 comments News
07290126 by SumofUs (CC BY 2.0) https://flic.kr/p/vKwD5e

The TPP Copyright Chapter Leaks: Canada May Face Website Blocking, New Criminal Provisions & Term Extension

KEI this morning released the May 2015 draft of the copyright provisions in the Trans Pacific Partnership (copyright, ISP annex, enforcement). The leak appears to be the same version that was covered by the EFF and other media outlets earlier this summer. As such, the concerns remain the same: anti-circumvention rules that extend beyond the WIPO Internet treaties, additional criminal rules, the extension of copyright term, increased border measures, mandatory statutory damages, and expanding ISP liability rules, including the prospect of website blocking for Canada.

Beyond the substantive concerns highlighted below, there are two key takeaways. First, the amount of disagreement within the chapter is striking. As of just a few months ago, there were still many critical unresolved issues with widespread opposition to (predominantly) U.S. proposals. Government ministers may continue to claim that the TPP is nearly done, but the parties still have not resolved longstanding copyright issues.

Second, from a Canadian perspective, the TPP could require a significant overhaul of current Canadian law. If Canada caves on copyright, changes would include extending the term of copyright, implementing new criminal provisions, creating new restrictions on Internet retransmission, and adding the prospect of website blocking for Internet providers. There is also the possibility of further border measures requirements just months after Bill C-8 (the anti-counterfeiting bill) received royal assent.

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August 5, 2015 22 comments News
No Piracy billboard by Descrier (CC BY 2.0) https://flic.kr/p/faTECf

Canadian Piracy Rates Plummet as Industry Points to Effectiveness of Copyright Notice-and-Notice System

Canada’s copyright notice-and-notice system took effect earlier this year, leading to thousands of notifications being forwarded by Internet providers to their subscribers. Groups such as the Canadian Recording Industry Association argued during the legislative process that notice-and-notice would “pose a long-term problem”, yet the evidence suggested that the system could be effective in decreasing online infringement. Since its launch, there have been serious concerns about the use of notices to demand settlements and to shift the costs of enforcement to consumers and Internet providers. With Industry Canada officials emphasizing that “there is no obligation for Canadians to pay settlement demands,” it is clear that there is still a need for the missing regulations, including a prohibition on the inclusion of settlement demands within the notices.

While the problems with notice-and-notice must be addressed, the leading notice sender says that they are proving to be extremely effective in reducing piracy rates. In fact, the system has proven so successful that a consortium of movie companies now want the U.S. to emulate the Canadian approach. According to CEG TEK, there have been “massive changes in the Canadian market” under notice-and-notice. They claim that piracy rates have dropped by the following rates in Canada:

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May 20, 2015 23 comments News
Local governments gather in Whistler for this year’s UBCM convention by Province of British Columbia (CC BY-NC-ND 2.0) https://flic.kr/p/ppp6Jc

Canadian Government on Copyright Notice Flood: “It’s Not a Notice-and-Settlement Regime”

The flood of copyright notices in Canada continues to attract attention and generate concern among many Canadians. I’ve posted several pieces on the issue, including a recent post on what recipients should consider if they receive a notice. I still receive daily emails from notice recipients, with some admitting that they quickly paid the settlement in a panic and now fear that they may have opened the door to even more settlement demands. In response to this copyright abuse, I was pleased to participate in an open letter signed by many groups calling on the government to fix the loopholes in the notice-and-notice system by prohibiting the inclusion of settlement demands within the copyright notices.

A recent Metro article suggests that the government is well aware that the system is being misused. Industry Minister James Moore’s press secretary Jake Enwright emphasizes that “there is no obligation for Canadians to pay these settlements” and that the current system is “not a notice-and-settlement regime.” Those are encouraging words that come as close as the government can to tell consumers that it does not believe that settlements should be included in the notices and to hint that it does not expect Canadians to pay.

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April 29, 2015 14 comments News