Bill C-86, the Budget Implementation Act that includes extensive copyright reforms, passed the Senate and received royal assent last week. With little fanfare, the rules for Canada’s copyright notice-and-notice have now changed. The law no longer requires Internet providers to forward notifications that include the following:
(a) an offer to settle the claimed infringement;
(b) a request or demand, made in relation to the claimed infringement, for payment or for personal information;
(c) a reference, including by way of hyperlink, to such an offer, request or demand; and
(d) any other information that may be prescribed by regulation
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The Canadian government has unveiled its long-awaited plan to fix abuses with copyright’s notice-and-notice system as part of Bill C-86, its Budget Implementation Act. Last spring, Innovation, Science and Economic Development Minister Navdeep Bains released an IP strategy that promised safeguards against intellectual property abuse, particularly use of copyright notices to send settlement demands to Internet users. The Canadian notice-and-notice system was formalized in 2012 to allow rights holders to forward allegations of online copyright infringement to internet users through their internet service provider. The system was viewed as a win-win approach since it promised to deter infringement through education rather than legal threats. Yet within hours of taking effect, anti-piracy companies began sending notices that included settlement demands backed by threats of litigation.
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The news that Bell has called on the Canadian government to support radical copyright reform in NAFTA that includes North America-wide mandatory website blocking (to be overseen in Canada by the CRTC) and the full criminalization of copyright represents only the latest step in the transformation of the company into one of Canada’s most aggressive copyright lobbyists and litigators. The Bell proposals go beyond what even the CACN, Canada’s anti-counterfeiting lobby group, has recommended. While copyright lobbying has been led for years by the movie and music industries, Bell has now broken with most other communications companies on copyright policy with policies barely distinguishable from the RIAA or MPAA. In recent years, it has argued against VPN use, used the courts to target a wide range of sites and services, lobbied for copyright reform in trade deals, and become the only telecom company in the world to join the Alliance for Creativity and Entertainment.
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Last year, the Quebec government introduced legislation that would require Internet service providers to block access to unlicensed online gambling sites. It provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The Quebec bill, which is currently before the provincial legislature, is a terrible idea that has been opposed by ISPs and consumer groups. The government views this initiative as a revenue enhancing measure because it wants to direct gamblers to its own Espacejeux, the Loto-Québec run online gaming site. The mandated blocking legislation is unprecedented in Canada and if enacted, it will surely be subject to legal challenge, including the possibility of a constitutional challenge.
The legal challenge may not be limited to constitutional issues, however. The Quebec bill may also be blocked by the TPP, which may be a good outcome, but raises the question of whether a trade agreement is the right way to dictate provincial laws.
How might the TPP apply to provincial online gambling regulation?
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The Trouble with the TPP series focuses today on the TPP’s effort to regulate how Internet providers and hosts address allegations of copyright infringement on their networks and sites (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension). The goals of the U.S. and Canadian government in the negotiations were clear from the outset: the U.S. wanted to export its DMCA notice-and-takedown system to the rest of the TPP, while Canada wanted to preserve its newly created notice-and-notice approach (more on the notice-and-notice system, which does a better job of striking a balance and preserving user privacy, here). In fact, Canada rushed through the notice-and-notice system without regulations (causing major problems of misleading notices) in order to argue that it should not be required to adopt the U.S. approach.
The end result is a compromise that allows Canada to maintain notice-and-notice, but no other TPP country can adopt it in order to comply with the ISP liability and notice rules. The Canadian rules can be found in Annex 18-E, which states that the standard TPP ISP rules do not apply to a country that meets the conditions of the annex “as from the date of agreement in principle of this Agreement.” Since that date is now long passed (October 4, 2015), no other TPP country can implement the notice-and-notice system to meet its TPP obligations. It should be noted that Chile, which objected to the special treatment for Canada, obtained a similar exception for its system based on the U.S. – Chile Free Trade Agreement in Annex 18-F.
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