Representatives of the motion picture association appeared before the Standing Committee on Industry, Science and Technology this week as part of the copyright review and called on the government to ensure the law permits site blocking and search result de-indexing rules to address piracy concerns. The representatives, who acknowledged under questioning from Liberal MP David Graham that the Motion Picture Association of America (MPAA) and Motion Picture Association Canada (MPAC) are the same organization, also argued to increased liability for Internet intermediaries.
The MPAA/MPAC called for the following reform:
allow rights holders to obtain injunctive relief against online intermediary service providers. Internet intermediaries that facilitate access to illegal content are best-placed to reduce the harm caused by online piracy. This principle has been long recognized throughout Europe where Article 8.3 of the EU copyright directive has provided the foundation for copyright owners to obtain injunctive relief against intermediaries whose services are used by third-parties to infringe copyright. Building upon precedents that already exist in Canada in the physical world the act should be amended to expressly allow copyright owners to obtain injunctions, including site-blocking and de-indexing orders, against intermediaries whose services are used to infringe copyright.
Article 8.3 of the EU Copyright directive states:
Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
Lobbying for an explicit site blocking and de-indexing injunction provision is presumably designed as a back-up to the site blocking proposal currently before the CRTC. Yet the reality is that 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. Indeed, the MPAA/MPAC’s global association intervened in that case, where it argued:
Canadian courts have equitable jurisdiction to grant ancillary orders against non-parties to give effect to existing orders. This authority is not new, and it is not limited to persons interacting face-to-face or businesses operating in bricks-and-mortar shops. This authority also applies to the internet, provided that the court has jurisdiction in respect of the relevant parties…Canadian courts have jurisdiction to grant equitable relief to enforce orders concerning unlawful activity online, including by enlisting intermediaries’ assistance to curtail wrongdoers’ attempts to circumvent the rule of law.
In other words, the MPAA/MPAC has previously argued before the Supreme Court that Canadian courts already have the power to issue injunctions that could include site blocking or site de-indexing. 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 or require the removal of search results. That is one reason the Bell coalition site blocking proposal is so problematic and why the movie industry’s latest call for additional site blocking injunction rules in the Copyright Act are, by its own admission, unnecessary.