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    The Trans Pacific Partnership IP Chapter Leaks: The Battle Over Internet Service Provider Liability

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    Thursday November 14, 2013
    The leak of the Trans Pacific Partnership intellectual property chapter generated global coverage as full access to the proposed text provided a wake-up call on U.S. demands and the clear opposition from many TPP countries. My first post highlighted Canada's opposition to many U.S. proposals, but nowhere is that more evident than in the section on Internet service provider liability. In fact, ISP liability in the TPP is shaping up to be a battle between Canada and the U.S., with countries lining up either in favour of a general notification obligation (Canada) or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking (U.S.).


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    Rogers Provides New Evidence on Effectiveness of Notice-and-Notice System

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    Wednesday March 23, 2011
    Bill C-32 looks to be headed for the dustbin if Canada heads into an election this week, but the C-32 committee is still ongoing until someone pulls the plug on the current Parlimentary session. Rogers, Telus, and Bell appeared yesterday and the discussion unsurprisingly focused on the notice-and-notice approach currently used by ISPs and codified within the bill. The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization on file sharing systems. The ISP forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.

    While some rights holders (who the committee learned played a role in establishing notice-and-notice in the first place) have claimed the system is ineffective, Rogers came prepared with evidence about how the system functions and on its effectiveness. It reports that it processed 207,000 notices in 2010, sending those notices to about five percent of its customer base. In other words, 95% of its subscribers are not identified by rights holders as copyright infringers - far from the piracy haven that it often claimed. Of the households that receive notices, only 1/3 receive a second notice. Of those that receive a second notice, only 1/3 of those receive a third notice. 


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    Bill C-32: My Perspective on the Key Issues

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    Tuesday September 21, 2010
    With the House of Commons back in session this week, there has been growing speculation that Bill C-32, the copyright reform bill, will emerge as a government priority.  Given the rhetoric we've seen over the past three months, it seems likely that proponents of the digital lock approach will seek to paint critics as anti-copyright, pirates, and radical extremists.  While the rhetoric may seek to delegitimize consumers and many Canadians vocal on the copyright issue, the reality is that many consumer and education groups have been far more supportive of the bill than proponents such as the music industry.

    With the caveat that I can only speak for myself, the following post covers the most contentious aspects of Bill C-32 by aggregating some of my posts and comments.  When the bill was first introduced, my immediate response was that the government did a good job compromising on some very contentious issues (ISP liability, fair dealing, consumer provisions, statutory damages) but that the digital lock approach represented a huge flaw that undermined many of the positive steps forward.  This remains my view - if we can find a compromise on digital locks, I think this is a bill worth supporting.  The following five issues are likely to be the among most contentious in the upcoming hearings:


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    The ACTA Internet Chapter: Putting the Pieces Together

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    Tuesday November 03, 2009
    The Anti-Counterfeiting Trade Agreement negotiations continue in a few hours as Seoul, Korea plays host to the latest round of talks.  The governments have posted the meeting agenda, which unsurprisingly focuses on the issue of Internet enforcement [UPDATE 11/4: Post on discussions for day two of ACTA talks, including the criminal enforcement provisions][UPDATE 11/5: Post on discussions for day three on transparency].  The United States has drafted the chapter under enormous secrecy, with selected groups granted access under strict non-disclosure agreements and other countries (including Canada) given physical, watermarked copies designed to guard against leaks.

    Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty). [Update 11/6: Source document now posted]  Sources say that the draft text, modeled on the U.S.-South Korea free trade agreement, focuses on following five issues:

    1.   Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

    2.   A requirement to establish third-party liability for copyright infringement.

    3.   Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).  For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content.  Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30.  They include policies to terminate subscribers in appropriate circumstances.  Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

    4.   Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.  For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules.  These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception.  Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices.  The current draft does not include any obligation to ensure interoperability of DRM.

    5.   Rights Management provisions, also modeled on U.S. free trade treaty language.


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