Wednesday October 31, 2012
The government is slated to bring Bill
C-11, the copyright reform bill, into effect next week without
the "notice-and-notice" rules for Internet providers. The
revelations come in a Privy
Council document that provides notification on when the bill
will come into force. It is expected that the order bringing the
bill into effect will be published
on November 7, 2012. The majority of the bill will take effect
on that date, including fair dealing reform, new consumer
exceptions, caps on statutory damages for non-commercial
infringement, the user generated content provision, and the digital
lock rules. There are two notable exceptions, however.
First, the Internet service provider "notice-and-notice" rules will
not take effect. The implementation has been apparently been the
subject of fierce behind-the-scenes lobbying over issues such as the
fees for processing notices and the retention of subscriber
information. The public has not been included in these discussions
and more open policy process is needed in developing the
Second, several sections related to the WIPO Internet Treaties will
also be delayed until those treaties come into force for Canada.
There are lingering
questions over whether Canadian law is fully compliant with
the WIPO Internet treaties, particularly with respect to the private
copying levy. Moreover, Canadian
policy now requires the government to provide the House of
Commons with at least 21-sitting days for review of a treaty before
taking legal steps to bring it into force. The tabling of the treaty
must include an explanatory memorandum. This suggests that these
provisions may be delayed and that the House of Commons may have
some further debate on the WIPO Internet treaties - perhaps
including why the government went far beyond treaty requirements -
whenever the government does pursue bringing the treaties into
TagsShareWednesday October 31, 2012
Monday August 18, 2008
One of Bill C-61's few good points is the notice-and-notice approach for Internet Service Provider liability. 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. 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. It falls to the subscriber to act and experience indicates that many remove the infringing content (if indeed it is infringing) voluntarily. If ISPs comply this approach, they qualify for a statutory safe harbour such that they will not face monetary damages (though they may be ordered to remove content). Failure to comply with the approach can bring liability of up to $10,000 in statutory damages.
This is the same approach that was proposed in Bill C-60 and that has been used on an informal basis in Canada for several years with groups like the Business Software Alliance acknowledging its effectiveness. The rationale for sticking with notice-and-notice rather than the U.S.-style notice-and-takedown becomes even more compelling in light of the U.S. experience. Studies have demonstrated that notice-and-takedown is flawed, open to abuse, and may lead to improper claims of infringement. While there may be pressure from the U.S. and lobby groups to move toward notice-and-takedown, the experience to-date provides plenty of reasons why that would be a mistake.
While the overall approach is a good one, there is some room for improvement. First, as pointed out in the policy position on C-61 adopted by the British Columbia Civil Liberties Association, the approach creates new data retention requirements with no judicial oversight. In order to qualify for the statutory safe harbour ISPs are required to retain customer data for six months from the time they receive the complaint (they retain for up to a year if the complainant launches a legal action). While there is a need to retain some data for this system to work, six months is a long period of time -- shorter periods and some form of oversight should be considered.
TagsShareMonday August 18, 2008