KEI this morning released the May 2015 draft of the copyright provisions in the Trans Pacific Partnership (copyright, ISP annex, enforcement). The leak appears to be the same version that was covered by the EFF and other media outlets earlier this summer. As such, the concerns remain the same: anti-circumvention rules that extend beyond the WIPO Internet treaties, additional criminal rules, the extension of copyright term, increased border measures, mandatory statutory damages, and expanding ISP liability rules, including the prospect of website blocking for Canada.
Beyond the substantive concerns highlighted below, there are two key takeaways. First, the amount of disagreement within the chapter is striking. As of just a few months ago, there were still many critical unresolved issues with widespread opposition to (predominantly) U.S. proposals. Government ministers may continue to claim that the TPP is nearly done, but the parties still have not resolved longstanding copyright issues.
Second, from a Canadian perspective, the TPP could require a significant overhaul of current Canadian law. If Canada caves on copyright, changes would include extending the term of copyright, implementing new criminal provisions, creating new restrictions on Internet retransmission, and adding the prospect of website blocking for Internet providers. There is also the possibility of further border measures requirements just months after Bill C-8 (the anti-counterfeiting bill) received royal assent.
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Canada’s copyright notice-and-notice system took effect earlier this year, leading to thousands of notifications being forwarded by Internet providers to their subscribers. Groups such as the Canadian Recording Industry Association argued during the legislative process that notice-and-notice would “pose a long-term problem”, yet the evidence suggested that the system could be effective in decreasing online infringement. Since its launch, there have been serious concerns about the use of notices to demand settlements and to shift the costs of enforcement to consumers and Internet providers. With Industry Canada officials emphasizing that “there is no obligation for Canadians to pay settlement demands,” it is clear that there is still a need for the missing regulations, including a prohibition on the inclusion of settlement demands within the notices.
While the problems with notice-and-notice must be addressed, the leading notice sender says that they are proving to be extremely effective in reducing piracy rates. In fact, the system has proven so successful that a consortium of movie companies now want the U.S. to emulate the Canadian approach. According to CEG TEK, there have been “massive changes in the Canadian market” under notice-and-notice. They claim that piracy rates have dropped by the following rates in Canada:
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The flood of copyright notices in Canada continues to attract attention and generate concern among many Canadians. I’ve posted several pieces on the issue, including a recent post on what recipients should consider if they receive a notice. I still receive daily emails from notice recipients, with some admitting that they quickly paid the settlement in a panic and now fear that they may have opened the door to even more settlement demands. In response to this copyright abuse, I was pleased to participate in an open letter signed by many groups calling on the government to fix the loopholes in the notice-and-notice system by prohibiting the inclusion of settlement demands within the copyright notices.
A recent Metro article suggests that the government is well aware that the system is being misused. Industry Minister James Moore’s press secretary Jake Enwright emphasizes that “there is no obligation for Canadians to pay these settlements” and that the current system is “not a notice-and-settlement regime.” Those are encouraging words that come as close as the government can to tell consumers that it does not believe that settlements should be included in the notices and to hint that it does not expect Canadians to pay.
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For the past few months, I’ve received daily emails from people who have been sent a copyright infringement notification as part of Canada’s notice-and-notice system. Most of the notifications come from CEG-TEK, a U.S.-based anti-piracy firm. Canadian Internet providers are now required by law to forward these notifications and CEG TEK has been taking advantage of a loophole in the system to include a settlement demand within the notification. Some of the recipients claim that the notification has been sent in error. Others say that they have received multiple notifications for a single download. In some cases, the recipient has clicked on the settlement demand link, while in others the person has called the company and revealed their identity. In virtually every case, they are looking for advice on what to do.
My typical response has been to point to my earlier posts on the issue that have explained Canada’s notice-and-notice system, the misuse of the system by rights holders in sending misleading information about Canadian copyright law, the government’s failure to stop the inclusion of settlement demands within the notices, and the massive expansion in the number of notices with the arrival of CEG TEK. I also point to Industry Canada’s page on the notice-and-notice system, which provides the government’s perspective on the issue. These resources can be helpful, but what most people really want to know is whether they should pay the settlement or ignore it. I don’t condone infringement but I believe that the misuse of the notice and notice system is extremely problematic. Moreover, I certainly think people that did not infringe copyright should not pay a settlement demand. I’m unable to provide specific legal advice, but I can provide more information that may assist in making a more informed decision about a system that was designed to discourage infringement, not create a loophole to facilitate settlement demands.
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The Federal Court has issued its ruling on the costs in the Voltage – TekSavvy case, a case involving the demand for the names and address of thousands of TekSavvy subscribers by Voltage on copyright infringement grounds. Last year, the court opened the door to TekSavvy disclosing the names and addresses, but also established new safeguards against copyright trolling in Canada. The decision required Voltage to pay TekSavvy’s costs and builds in court oversight over any demand letters sent by Voltage.
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