As the Industry Committee’s copyright review continues to hear from stakeholders from across the spectrum, a recurring theme has been demands that the government create a new, explicit Internet intermediary injunction that would allow for everything from site blocking to search engine result de-indexing to a ban on payment providers offering services to some sites. For example, earlier this week, the Canadian Chamber of Commerce argued before the Industry Committee:
CIPC encourages the government to enact provisions that expressly allow rights holders to obtain injunctive relief from competent authorities, such as site blocking and de-indexing orders, against intermediaries whose services are used to infringe copyright.
That recommendation was echoed by the Business Coalition for Balanced Copyright, which is comprised of many leading telecom companies. It stated:
The Coalition strongly supports amendments that will make it easier for copyright owners to effectively enforce their rights. The act should allow for injunctive relief against all of the intermediaries that form part of the online infrastructure distributing infringing content. For example, it should be explicit that courts can issue a blocking order requiring an ISP to disable access to infringing content available on preloaded set top boxes or an order prohibiting credit card companies from processing payments for infringing services.
Yet despite the increasingly heated rhetoric for new court injunctions related to Internet intermediaries, the reality is that Canadian law already provides rights holders with the legal tools they need. In fact, injunctions or orders have been obtained against websites, search engines, and many other intermediaries. The power to obtain injunctions for infringement is clear. Section 34(1) of the Copyright Act provides:
Where copyright has been infringed, the owner of the copyright is, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.
In addition, Section 41.27(1) for information location tool providers, better known as search engines, speaks specifically to injunctions in certain circumstances:
In any proceedings for infringement of copyright, the owner of the copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of an information location tool that is found to have infringed copyright by making a reproduction of the work or other subject-matter or by communicating that reproduction to the public by telecommunication.
The Copyright Act also contains a provision that targets sites that “enable” infringement, thereby bringing those sites into the scope of injunctive relief found in Section 34(1):
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.
These provisions have been used to do exactly what rights holders say is needed. In fact, Innovation, Science and Economic Development Minister Navdeep Bains has noted that “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.” These tools have been used to launch lawsuits against set-top box distributors, mod-chip sellers, and websites such as TVAddons. Some of these lawsuits have resulted in injunctions and massive damage awards running into the millions of dollars. In fact, even the Supreme Court of Canada has upheld orders against intermediaries that apply on a global basis as last year’s Equustek decision required Google to remove search results in support of intellectual property rights.
The demand for a duplicate injunction provision is particularly odd given that rights holders have been reluctant to use the powers they already have. As noted, there are several key cases that demonstrate their effectiveness, yet when asked about using the law, rights holders such as Bell have been somewhat evasive in their answers. For example, when asked whether Bell or Rogers had ever even tried to use the existing law to obtain a site blocking order, the companies had to admit they had not:
Mr. David de Burgh Graham: Have Bell or Rogers attempted to get any of these orders to block sites?
Mr. Robert Malcolmson: We have certainly been to court trying to get injunctions against those that sell the set top boxes that disseminate this content. My colleague may want to speak to how long and torturous that process is, but even when you can actually find a defendant in Canada and get proof that that person is engaging in illegal conduct it has taken us, I think, two years to shut down one particular defendant in Montreal. Imagine how difficult it is to tackle an offshore defendant.
Notwithstanding demands for more enforcement powers, Minister Bains was right when he noted that there are already numerous legal provisions and tools to allow rights holders to enforce their rights. The Industry committee should demand evidence that the current set of tools are inadequate based on real-world usage before entertaining the possibility of expanding the already-extensive enforcement toolkit.