C-32 enablement remedy targets secondary copyright infringement

February 18th, 2011 by Barry Sookman and Dan Glover Leave a reply »

Mark Twain once famously commented, “Only one thing is impossible for God: to find any sense in any copyright law on the planet.” Canadian copyright law bears the burden of his axiom more than most. The pith of our copyright law dates from a 1911 bill passed in the United Kingdom, which we adopted wholesale in the early 1920s, and have not kept current with the changes in time.

Our law, which was designed to deal with player pianos and renegade printing presses, and later traditional broadcast techologies like radio and TV, is occasionally called upon to deal with illegal filesharing on the Internet. But the legal tools to protect intangible property have not kept pace with the advances in technologies and services that are used to facilitate infringement on the Internet.

While the 1911 law targeted centralized distribution of infringing books, peer-to-peer distribution networks create a situation that could not have been imagined at that time. Now, when a user in Canada illegally downloads an album, software, game, book or film, that person benefits from a situation where other users contribute tiny fragments of that work in a swarm crossing the world, where every personal computer is its own printing press, and where a single memory stick, MP3 player, or tablet can warehouse inconceivable amounts of information.

Critically, unlike 1911, the primary profiteers often do not themselves directly infringe copyright. Instead they take a series of preparatory steps to faciliate and encourage and to aid infringements by others. These activities take many different forms, many of which mutate considerably whenever legal pressures are applied. Sites such as isoHunt or Pirate Bay index and foster illegal copying and distribution of content using the BitTorrent protocol. Cyberlocker providers such as MegaUpload or RapidShare provide storage space for petabytes of information comprising many hundreds of thousands of copyright works that can easily be downloaded by others, and have been known to pay cash rewards to those users whose works are most commonly downloaded. Linking and leech websites gather together links to infringing content stored remotely throughout the world. Even old technologies such as the Usenet are still being deployed to create relatively anonymous means of large-scale file sharing. These sites profit from the distribution of infringing content, at the expense of artists, writers, and other creators, publishers, distributors and everyone else that invests in or supports the creative industries.

Canada has thus far been a haven for such activities. In 2010, Canada was placed on the USTR Priority Watch List because of weak IP laws and the number of pirate sites and services operating within its borders. Earlier this week, the International Intellectual Property Alliance (IIPA) recommended in its Section 301 submission to the USTR that Canada remain on the Priority Watch List. A January 2011 study shows the British Columbia-based IsoHunt as one of the top BitTorrent sites in the world, with an estimated 12,000,000 unique monthly visitors. IsoHunt is just one of the many pirate sites and services still operating in Canada.

IsoHunt views Canada’s laws against secondary infringement as being so anorexic that, in September 2008, it commenced an application in the British Columbia courts seeking a declaration that its operations are legal here and do not infringe the copyrights of record labels. This proceeding is being defended by the labels. (Contrary to the suggestion of Prof. Geist, the record labels brought proceedings against IsoHunt for copyright infringement only after being sued by IsoHunt. The suit brought by IsoHunt has been widely reported since its filing including by Prof. Geist. The responding lawsuit has also been public since it was filed.)

The current Copyright Act aims almost exclusively at direct infringers, supplemented by an authorization right and a narrow set of activities that comprise secondary infringement. Now, with the introduction of Bill C-32 into Parliament, Canada is taking a serious step to deal with the issue of enablement. Following Minister Clement’s publicly stated desire to target “the wealth destroyers”, the Government has included within Bill C-32 a brand-new “enablement” remedy that would expand the existing remedies against secondary infringement.

If passed in its present form, s. 27(2.3) would make it “an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement”. Courts are given criteria to assist in their determinations, including economic benefit from the infringements, overt promotion of the service’s infringing capabilities, knowledge of actual infringements, the presence of significant non-infringing aspects for the service, and acts taken to limit copyright infringement.

This cause of action would override certain exceptions for onlines service providers, such as the network services exception, but would not expressly override other exceptions, such as the hosting exception.

Despite the Government’s goal of targeting the “wealth destroyers”, statutory damages are not available against persons who have been found liable for enabling infringement.

While the new enablement right is a good first step, it has some technical drafting defciencies that need to be fixed to ensure that the new cause of action can be used against the intended pirate sites and services.

  • First, Parliament must recognize that pirate sites and services often are “not designed primarily to enable” acts of copyright infringement. The design is very often neutral, but the site or service is run to induce, aid or abet infringing activities, or is primarily used for infringing purposes.
  • Second, Parliament must ensure that this provision clearly trumps all all of the online service provider exceptions to avoid a circumstance in which enablers like wealth destroying pirate hosting sites can avoid liability for enablement.
  • Third, to provide an adequate and effective remedy against enablement, Parliament should confirm that rightsholders may rely on the full scale of statutory damages against those who are liable for enablement, regardless of whether such persons were operating for commercial purposes. (The experience of the Internet shows that certain enablers can have a devastating effect on the marketplace without acting with profit in mind.)

Bill C-32 offers many important amendments to the Copyright Act that need to be made to bring our legislation into the 21st century. The enablement provision is an example of one such provision. However, like many of the proposed amendments, it has technical drafting flaws. These need to be addressed at the Parliamentary Legislative Committee to ensure that the Bill accomplishes the objectives set by the government.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.

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