The Bell coalition’s website blocking proposal has sparked a huge public outcry, with thousands of Canadians submitting interventions to the CRTC opposing a plan premised on website blocking without direct court involvement. I have written several posts on the issue – a general assessment on why it is a terrible idea, a closer look at the economic reality of the Canadian film and television sector, and a discussion of Bell’s inconsistent comments to the CRTC vs. business analysts – but the case against the radical plan merits a closer look at both the evidence and the legal arguments. With this post, I begin a new series that will make the case against the Bell coalition’s website blocking plan.
The series begins with the initial response to the plan from Innovation, Science and Economic Development Minister Navdeep Bains, who stated:
We understand that there are groups, including Bell, calling for additional tools to better fight piracy, particularly in the digital domain. Canada’s copyright system has numerous legal provisions and tools to help copyright owners protect their intellectual property, both online and in the physical realm. We are committed to maintaining one of the best intellectual property and copyright frameworks in the world to support creativity and innovation to the benefit of artists, creators, consumers and all Canadians.
Bains was right to note that Canada already has many legal provisions designed to assist copyright owners. In fact, Canada has some of the world’s toughest anti-piracy provisions, which Bell and others have actively used in recent years. This includes lawsuits against set-top box distributors, mod-chip sellers, and websites such as TVAddons. Some of these lawsuits have resulted in massive damage awards running into the millions of dollars.
Further, Canadian copyright law has also been used to shut down websites whose primary purpose is to enable infringement with rights holders relying on an “enabler provision” contained in the 2012 copyright reforms that can be used to target online sites that provide services primarily for the purpose of infringement. It states:
It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling 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.
The factors to determine whether the provision applies include:
- whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;
- whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;
- whether the service has significant uses other than to enable acts of copyright infringement;
- the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;
- any benefits the person received as a result of enabling the acts of copyright infringement; and
- the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.
This powerful legal tool is made even stronger by the existence of statutory damages in Canada that can lead to millions in liability for infringement. In fact, Canada is in the minority of countries that even has statutory damages as most require evidence of actual damages. The combination of specific provisions to target sites that facilitate infringement with the possibility of enormous damage awards means that Canada already has tough copyright laws in place to combat piracy.
Yet the Bell coalition is effectively arguing that it needs more laws or legal tools to target non-Canadian sites that may be accessed by Canadians. However, Canadian law already provides for injunctive relief in appropriate circumstances with the Supreme Court of Canada’s Equustek decision one of the more recent manifestations of courts issuing orders to non-parties in support of intellectual property rights.
There is no guarantee that courts will issue such an injunction – courts around the world have consistently identified the challenge of balancing protection of intellectual property rights with the implications of site blocking on freedom of expression – but a comprehensive, impartial court review with full due process is precisely what should be required before the power of the law is used to block access to content on the Internet. Copyright owners are seeking to create their own system at the CRTC without direct court involvement or policy review by Parliament. Before entertaining such a possibility, they should surely be required to test the effectiveness of existing law.