Modern Copyright Framework for Online Intermediaries: my submission to the consultation

Copyright blocking orders

I am Senior counsel in the Technology Law Group of McCarthy Tetrault LLP. I am the former leader of the firm’s Intellectual Property group. I am one of Canada’s leading authorities in technology, Internet, and copyright law and am an Adjunct professor of intellectual property law at Osgoode Hall Law School. My bio can be accessed here or here.

The comments below reflect my personal opinions and do not necessarily reflect the views of my firm or its clients.

4.1.1 Recalibrate the Knowledge Standard for Eligibility and 4.1.2 Clarify the Permitted Involvement of Qualifying Intermediaries

I agree these standards should be clarified. The European Union, United States and Australia, among other countries, unlike Canada, have express knowledge requirements that create incentives for online intermediaries to remove or disable access to infringing content. 

Online intermediaries, should be eligible for the safe harbours where they are “innocent (content neutral) intermediaries”. The attributes of such entities were described in SOCAN v. Canadian Assn. of Internet Providers, 2004 SCC (the Tariff 22 case), Bell Canada v. Lackman, 2018 FCA 42, and were further expounded on in Crookes v. Newton 2011 SCC 47. The concept of a neutral innocent intermediary is also the standard in the European Union Infosec Directive 2000/31 and the case law that has interpreted it.[i] These authorities, as I argue in my article, Hyperlinking and ISP liability clarified by Supreme Court in Crookes case, suggest that an “innocent (content neutral) intermediary” is an entity that acts in a content neutral manner, having no actual knowledge of an alleged infringement, and not being aware of circumstances to put it on notice to suspect an infringement, or being negligent in failing to find out about it, and whose role in the dissemination of the information is merely passive, instrumental, and automated. See also, these articles that explain the concept of innocent (content neutral) intermediary. Barry Sookman, Kodi box add-on distributor loses copyright appeal: Bell v Adam Lackman dba TVADDONS.AG; Barry Sookman, Is Google a publisher according to Google? The Google v Equustek and Duffy cases.[i]

The current safe harbors might well be interpreted as described above and the consultation proposal below might, if enacted, merely partially clarify the current law.

Nevertheless, the principle could be clarified by codifying that, to be protected, an intermediary’s involvement must be limited to the provision of merely technical, automated services and must not amount to an active role in the infringing activity. Such a clarification could ensure that intermediary liability is commensurate with intermediary activities, and thereby prompt intermediaries playing such active roles to enter into equitable licences with rights holders for uses of their content through the intermediaries’ services. Clearer factors indicating such an active role could also be specified. 

4.1.3      Enact New Obligations for Qualifying Intermediaries

I agree that Online Intermediaries should have processes to disable access to content on receiving a notice of claimed infringement in defined circumstances. This was what the Supreme Court recommended in the Tariff 22 case:

I agree that notice of infringing content, and a failure to respond by “taking it down” may in some circumstances lead to a finding of “authorization”.  However, that is not the issue before us.  Much would depend on the specific circumstances.  An overly quick inference of “authorization” would put the Internet Service Provider in the difficult position of judging whether the copyright objection is well founded, and to choose between contesting a copyright action or potentially breaching its contract with the content provider.  A more effective remedy to address this potential issue would be the enactment by Parliament of a statutory “notice and take down” procedure as has been done in the European Community and the United States. (emphasis added)

A notice and staydown mechanism should be considered to address the “wac-a-mole” problems described in the U.S. Copyright Office Report, Section 512 of Title 17. This problem has also been recognized in the EU under the Digital Single Market Directive in Article 17 which imposes, in specific circumstances, obligations on content sharing services to make, “in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event” to act “expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads”. The U.S. Digital Copyright Act of 2021 would also, if enacted, clarify the knowledge requirements for OSPs, lowering the specificity with which copyright owners must identify infringing material in certain circumstances, and replacing the notice-and-takedown system in existing law with a notice-and-staydown system for complete and near complete works.

4.2 Compel Remuneration Through Collective Licensing

4.4  Clarify or Strengthen Enforcement Tools Against Online Infringement

The Federal Court of Appeal recently confirmed that courts have the jurisdiction to make blocking orders against ISPs. See, Barry Sookman, Blocking orders available in Canada rules Court of Appeal in GoldTV case. The Supreme Court also held that courts have the jurisdiction to make de-indexding orders against search engines. See, Barry Sookman, Google v Equustek: worldwide de-indexing order against Google upheld by Supreme Court.

I agree that there should also be a statutory basis for blocking orders as there is in the EU, Australia, and Singapore. It would enable rights holders to obtain expeditious and effective forms of no-fault injunctive relief. Parliament could decide on the factors court should apply, such as that the site or service primarily engages in or enables infringement. It would also permit Parliament to specify whether the jurisdiction applies to all Online Intermediaries such as ISPs, hosting providers, and search engines, as well as payment processors, ad networks and domain name registrars. The mechanism could be overseen by courts and/or by an administrative tribunal such as the CRTC, as is the case around the world.

Courts internationally regularly grant both dynamic and “live” orders, and such orders should be available in Canada as well.

Courts make orders “dynamic” when they permit online locations blocked to be updated to deal with circumvention efforts by pirates. Some courts permit this by enabling rights holders to provide updated information directly to ISPs, who can object if they disagree. Other courts provide a mechanism to update blocklists by providing an affidavit to ISPs and the court. The ISPs must implement the updated locations unless they disagree. Only then is it necessary to get the court’s ruling on adding them. Some courts require courts to update their orders with new locations. For examples, see, Bloomsbury Publishing PLC et al v BTT, United Kingdom H.C. (May 19, 2015); Football Association Premier League Ltd v M1 Ltd, Case No HC/OS 211/2020, High Court of Singapore (March 9, 2020); UTV Software Communications Ltd v. 1337X.TO, High Court Delhi, 10 April, 2019, CS(Comm) 724/2017; La Liga Nacional de Futbol Professional v Telenor A/S, Denmark, Court of Frederiksberg (April 15, 2019).

A variation on this are “live” blocking orders. These permit rights holders such as owners of rights in soccer matches to notify ISPs of specific online locations to be targeted only for the times that games are broadcast. Online locations to be blocked are reset before each event where a match will be broadcast, Examples are injunctions obtained by the Premiere League which has obtained injunctions against streaming websites and servers. For an example, see, FAPL v British Telecommunications PLC & Ors [2017] EWHC 480 (Ch) (FAPL v BT I) relating to the blocking of streaming servers.

Many of the criticisms of blocking orders simply do not stand up to scrutiny.  For a detailed response to the criticisms, see, Barry Sookman, Fact checking Michael Geist’s criticisms of the FairPlay site blocking proposalBarry Sookman, Why the CRTC should endorse FairPlay’s website-blocking plan: a reply to Michael Geist. 

I explain below why properly targeted blocking orders are necessary and how they promote rather than impinge on freedom of expression rights.

Background related to blocking orders

Over 40 countries around the world have either adopted and implemented, or are legally obligated to adopt and implement, measures to enable courts to make blocking orders against online locations that wholly or predominantly infringe or enable infringements of copyrights. These countries include the UK, members of the EU, Australia, Singapore, South Korea, Argentina, and India. In UTV Software Communications Ltd v. 1337X.TO, High Court Delhi, 10 April, 2019, CS(Comm) 724/2017, the court summarized this as follows:

At least forty-five countries have either adopted and implemented, or are legally obligated to adopt and implement, measures to ensure that ISPs take steps to disable access to copyright infringing websites. These countries include the UK, Australia, Singapore, Portugal, France, Germany and India (Site Blocking in the World, MPA Study on Site Blocking Impact in South Korea, June 2016 ). Around the world, ISPs receive directions to block websites either from Courts or from administrative agencies/other competent authorities. The mafterrjority of governments where such relief is available have adopted the judicial approach, which involves ISPs blocking specific websites pursuant to criminal and civil Court orders, e.g. most EU Member States (including the UK), India, Singapore and Australia. A few additional countries like South Korea, Portugal, Italy, Malaysia and Indonesia have adopted an administrative approach where government agencies direct ISPs to block specific piracy services. In both these methods the approach is similar, whereby right owners establish that the target website provides access tof infringing content. Courts and administrative agencies review the evidence to ensure that websites engaged in predominantly legal activities are not blocked. Following such assessment, directions are issued by the Court or administrative agency to ISPs to block specific infringing websites.

I explain the rational for such orders in my book Sookman: Computer, Internet and Electronic Commerce Law (Thomson Reuters, 2021) as follows:

Injunctions against intermediaries to combat illicit online filesharing has become commonplace internationally. Site blocking (or other online location blocking) for copyright purposes is available, for example, in EU/ EEA member states (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Norway, Portugal, Sweden, Spain, U.K., and the legal basis also exists in the other member states of the European Union based on Article 8(3) of the Infosoc Directive), South America/Latin America (Mexico, Argentina), and Eurasia and Australasia (Australia, India, Indonesia, Malaysia, Russia, Turkey, Singapore, South Korea, Thailand). Secondary sources also suggest it may be available in Brazil, Chile, Peru, and Saudi Arabia.

Web site blocking and similar orders against intermediaries are necessary because the existing remedies that target infringements in the physical world are not effective against new forms of online piracy, and in particular, online download and streaming sites hosted and operated from outside of Canada.

However, the operators of pirate web sites often hide their identities such as through domain privacy protection services and obtain hosting and other services from jurisdictions that are not friendly to rights holders. Direct enforceable remedies to make them cease their activities is frequently impossible. For example, The Pirate Bay has been blocked around the world and its originators were jailed by a Swedish court. Yet, it still continues to defy and evade legal measures to shut it down.

Blocking order remedies were developed because ISP systems are used to facilitate the illegal dissemination of materials, other remedies in the toolbox are not effective, and because ISPs are best placed to mitigate or bring illegal behavior to an end. I address this in my book as well as follows:

International courts, faced with challenges of enforcing rights online, have recognized that the Internet is not ‘‘a no law land”. Just as they adapted the law to deal with previous novel situations, so have the courts adapted the law to deal with Internet wrongs.

Courts and legislatures around the world have recognized that in the digital environment, Internet intermediaries and search engines are often best placed to mitigate or bring illegal behavior to an end. ISPs provide access to the Internet. Hosting providers make digital content publicly available over the Internet. Search engines collect and index huge volumes of web site information, which in many cases would otherwise not be easily located by users. Their systems and services are used to commit or to facilitate illegal activity, often on a commercial scale. In many cases, theoretical remedies against those primarily culpable would be unrealistic. Since violations of rights often take place under the guise of bogus identities or anonymously, the responsible persons can be found and taken to account only with a lot of luck, after long delay and at best in exceptional circumstances. Internet intermediaries and search engines are in unique technical positions to bring the culpable activities to an end and to prevent further violations, and injunctions against them have been recognized often to be the only viable mechanism to accomplish these goals.

The use of web site blocking as a tool to protect the public from illegal materials and illegality perpetrated by means of the Internet reflects the emerging recognition that, for all its good, the Internet is increasingly used for all manner of crimes and to spread false information (fake news), and racist and hateful materials. There is also an increasing realization that what is illegal offline should also be illegal online, and that Internet intermediaries, from ISPs, search engines, to social network platforms, must act responsibly and play a role in countering these threats.

Other liberal democratic countries including members of the European Union already engage in web site blocking to protect members of the public from illegal activities such as from malware, investment fraud, hate speech, child abuse materials including child pornography, prostitution, speech inciting violence, online gambling, prohibiting dissemination of Nazi war memorabilia, and terrorism related content…

Blocking orders do not violate freedom of expression rights

It has been argued that blocking orders violate rights to freedom of expression. In my view, blocking orders that are properly targeted against sites or services that solely or predominantly infringe copyright do not violate freedom of expression rights. In fact, in may be argued that blocking orders are required to promote freedom of speech and protect human rights and to comply with Canada’s treaty obligations.

In Google Inc. v Equustek Solutions Inc., 2017 SCC 34, the Supreme Court held that an order of a court to de-index a website that violates a court order does not violate freedom of speech rights. The same must be true of a blocking order:

Par 48 This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods

Par 49 Even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders.

These passages from the Equustek case were referred to by the Federal Court of Appeal in the GoldTV case.

When you peel back the arguments against blocking orders being a violation of freedom of expression rights and analyze them carefully they just don’t hold up in a case involving a piracy site.

Even if the Charter is capable of applying to private disputes, it is clear from Canadian decisions that remedies to stem copyright infringement from sites or services that primarily infringe copyright would not infringe s2(b) of the Charter. For example, in Canada v James Lorimer & Co (1983), [1984] 1 FC 1065 (CA) the Federal Court of Appeal held that freedom of expression rights under s2(b) are not engaged when a work is being copied because that does not involve an act of expression. In Cie générale des établissements Michelin – Michelin & Cie v CAW – Canada, (1996), 71 CPR (3d) 348 the Federal Court made the following findings:

  • The Charter does not confer the right to use private property – the Plaintiff’s copyright – in the service of freedom of expression.

  • Infringement of copyright undermines freedom of expression rather than impinges on it. “The Defendants had no need to adopt a form of expression, the use of copyrighted material, that deprived the Plaintiff of its property and actually subverted the third value of promoting the diversity of ideas. In other words, if copyright is not respected and protected, the creative energies of authors and artists in furthering the diversity of ideas will not be adequately compensated or recognized.”

  • “The protection of authors and ensuring that they are recompensed for their creative energies and works is an important value in a democratic society in and of itself. As well, the pressing and substantial nature of the Copyright Act’s objective is buttressed by Canada’s international obligations in treaties like the Berne Convention of 1886 as revised in Berlin in 1908 and in Rome in 1928: Schedule III (Section 71) of the Copyright Act, and Bishop (supra) at pages 473-474.”

  • Even if infringement in some cases involved expression the restrictions in the Copyright Act would be minimally impairing and would pass the Oakes Charter test.

The only real issue as far as freedom of expression goes in a blocking order case is whether the rights of ISPs or users of the Internet are infringed.

As the Federal Court of Appeal held in the recent GoldTV case, the Charter right to freedom of expression cannot apply to ISPs. ISPs are mere conduits for content transmitted by others. As such they do not engage in any speech. See also, Reference re Broadcasting Act, 2012 SCC 4 “ISPs provide Internet access to end-users.  When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content.” SOCAN v. Canadian Assn. of Internet Providers, 2004 SCC 45 (holding that an ISP is a conduit and does not communicate a work by providing means to transmit it).

So the only issue is whether blocking orders implicate rights of freedom of speech of users, and if they do, how these should be balanced against the importance of protecting copyrights. This issue has been canvassed extensively by courts outside of Canada. As far as users’ rights of freedom of expression go, they can be summarized in the following 3 statements.

  • The courts internationally do not consider freedom of speech rights of users to be violated by blocking access to content that is predominantly infringing. As in Canada, infringing content does not go to the core of protected expression and users have no speech rights to receive infringing content. In fact, targeted blocking orders are viewed as enhancing rather than impairing freedom of speech rights.
  • The only concern of courts internationally is to protect against the potential for orders to inadvertently block lawful sites or sites that also have significant non-infringing content. Experience internationally is that over-blocking has not been a problem and they are addressed by standard orders to safeguard against it.
  • Accordingly, where the blocking orders are targeted so they do not over-block they have been held not offend rights under applicable constitutions including the two EU instruments that protect fundamental rights of freedom of expression, s.11 of the The Charter of Fundamental Rights of the European Union and Article 10(1) of the European Convention on Human Rights.

The following international authorities confirm these propositions.

Warner Bros Entertainment Norge AS et al v Telenor Norge AS, Case No 15-067093TVI-OTIR/05, Norway, Oslo District Court (September 9, 2015). This case makes clear that infringing content is not considered protectable expression under the EU Human Rights Convention and a blocking order should issue even if the site provides access to other infringing content not belonging to the plaintiff. Further, the fact that there may be a small amount of legal content is not a bar to obtaining an injunction. The content may be available elsewhere legally and so the orders are still proportionate.

The court finds that an order to block the access to The Pirate Bay will not conflict with the consideration of the freedom of speech and information; cf. the Constitution Section 100 and article 10 of the European Human Rights Convention. The utterances and information that will be affected by such measure mainly lie far beyond the core of what the freedom of speech and information shall protect. As mentioned it must be assumed that more than 90% of the content made available on the website is illegal. The fact that there is also a minor share of legal content on The Pirate Bay, which will be affected by the order, cannot be decisive. The actual expressions, i.e. the works that are unlawfully available on The Pirate Bay, will still be available through legal channels. The balance between the public interest in gaining access to the work and the author’s rights are already attended to by the Copyright Act. When it, as the case is in this matter, is a website that almost exclusively makes available content without the consent of the rights holders, it is obvious to the court that freedom of speech and information cannot get in the way for the kind of order requested by the rights holders.

Cartier International AG v British Sky Broadcasting Ltd, British Telecommunications Plc, [2014] EWHC 3354 (Ch) BOA Tab 171. This case examined the impact of blocking orders on users’ rights to receive information online.

The Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union (“the Charter”)… includes the following provisions:

Article 11 Freedom of expression and information. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Impact on lawful users

“As for the freedom of internet users to receive information, this plainly does not extend to a right to engage in trade mark infringement, particularly where it involves counterfeit goods. Since the Target Websites appear to be exclusively engaged in infringing commercial activity, with no lawful component to their businesses, the operators have no right which requires protection. Thus the key consideration so far as this freedom is concerned is the impact of the orders on users of other, lawful websites. If the orders are properly targeted, and have sufficient safeguards built into them, then that should mean that such users are not affected.”

“Given that the Target Websites are wholly engaged in infringing activity, the impact of the orders sought by Richemont on lawful users depends on two factors. The first is whether each Target Website shares an IP address with another website, and if so whether that other website carries on a lawful activity. The second is the precise nature of the order which Richemont seek.”

“So far as the first factor is concerned, there is no dispute that five of the six active Target Websites share an IP address with other websites. For example, as at 18 September 2014, cartierloveonline.com shared an IP address with 13 other websites, two of which were cartierlove2u.com and cartierlove2u.net. Richemont’s solicitors have analysed the other 11 websites. Their conclusion is that nine of them were advertising counterfeit goods (in two cases replica Cartier goods and in the other cases goods unconnected with Cartier, including Nike and Beats by Dr Dre). One was unavailable and one was a holding page with links to other illegitimate websites. Similar conclusions were reached in respect of four other Target Websites. The details of these analyses were only produced after the hearing, however, and the ISPs’ solicitors have indicated that they are not entirely accepted by the ISPs.

So far as the second factor is concerned, Richemont contend that, in the case of the Target Website which does not share an IP address, then an order which required IP address blocking would not adversely affect lawful users. I accept this. Richemont also contend that, in the case of Target Websites which share an IP address with other websites which are engaged in unlawful activity, then an order which required IP address blocking would not adversely affect lawful users of the internet. In principle, I agree with this. Whether the other websites are in fact engaged in unlawful activity depends on the accuracy of Richemont’s solicitors’ analyses, however. If the ISPs consider that the position is open to doubt, they are entitled to require the Court to decide the question. If necessary, I will hear further argument on this point. Finally, Richemont accept that, if a Target Website shares an IP address with a legitimate website, then the order should only require DNS blocking.”

“In conclusion, it ought to be possible to target the blocking so that lawful users are not adversely affected by it.”

UPC Telekabel Wien GmbH v Constantin Film, Case No C‑314/12, Austria, Court of Justice of the European Union (March 27, 2014). This is the leading authority in the EU on whether freedom of speech rights are violated by blocking orders.

“In the present case, it must be observed that an injunction such as that at issue in the main proceedings, taken on the basis of Article 8(3) of Directive 2001/29, makes it necessary to strike a balance, primarily, between (i) copyrights and related rights, which are intellectual property and are therefore protected under Article 17(2) of the Charter, (ii) the freedom to conduct a business, which economic agents such as internet service providers enjoy under Article 16 of the Charter, and (iii) the freedom of information of internet users, whose protection is ensured by Article 11 of the Charter.”

“None the less, when the addressee of an injunction such as that at issue in the main proceedings chooses the measures to be adopted in order to comply with that injunction, he must ensure compliance with the fundamental right of internet users to freedom of information.

In this respect, the measures adopted by the internet service provider must be strictly targeted, in the sense that they must serve to bring an end to a third party’s infringement of copyright or of a related right but without thereby affecting internet users who are using the provider’s services in order to lawfully access information. Failing that, the provider’s interference in the freedom of information of those users would be unjustified in the light of the objective pursued.

It must be possible for national courts to check that that is the case. In the case of an injunction such as that at issue in the main proceedings, the Court notes that, if the internet service provider adopts measures which enable it to achieve the required prohibition, the national courts will not be able to carry out such a review at the stage of the enforcement proceedings if there is no challenge in that regard. Accordingly, in order to prevent the fundamental rights recognised by EU law from precluding the adoption of an injunction such as that at issue in the main proceedings, the national procedural rules must provide a possibility for internet users to assert their rights before the court once the implementing measures taken by the internet service provider are known.”

“In the light of the foregoing considerations, the answer to the third question is that the fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.”

Elsevier B.V. et al v Banhhof AB, Sweden, Stockholm Patent and Markets Court (December 6, 2019). The court confirms that blocking orders are a proportionate vehicle for stemming online infringement.

“Next question that the Patent- and Market has to consider when it regards the proportionality assessment is that of Internet users’ freedom of information. When assessing this issue, it should be noted that the freedom of information, as stated above, is not absolute. The Court of Court of Justice of the European Union has expressed that a blocking measure must not unnecessarily deprive internet users the possibility of a permissible way to take part of information (see UPC Telecom, p. 63).”

“Instead, it is sufficient to note that the evidence relied upon by Elsevier as a whole gives clear support for the fact that a predominant part of the material on the Services have copyright protection and are made available illegally to the public  and that the services are also mainly used for making available such material. In addition, it has emerged in the case that the main purpose of the Services is to give users free access to copyright protected material. Although it is a matter of scientific publications in which the Internet users’ interest in freedom of expression and information weighs particularly heavily, the Court considers that Elsevier’s interest in protecting its copyright outweighs it. Thus, the Court considers that a blocking injunction although it risks to some extent restricting access to legitimate material – would be proportionate and not unnecessarily restrict the freedom of information of Internet users (see UPC Telekabel, p. 63).”

“With regard to the question of whether there are sufficient safety measures for Internet users under Swedish law, the court considers that this requirement is met by the fact that in the case there is a concrete injunction that is the subject of a judicial review by a court of law where a balance against, among other things, freedom of information for internet users is made (cf. UPC Telekabel p. 57).”

Capif Camara Argentina De Productores De Fonogramas et al. v The Pirate Bay, Case No. 67921/2013, Argentina, Court of First Instance Buenos Aires. This is a case in which the court granted a blocking order premised on the need to protect human rights associated with copyrights and to comply with international treaties related to copyright.

“Several renowned legal scholars also question this practice: the torrent software may “devastate cultural creativity” pretty much in the same way as “pollution devastates the environment. P2P networks allow a dissemination of artistic works never before seen in history, but also have an unprecedented ability to harm copyright.”

“However, both said Law and the international treaties signed by the Argentine Republic for the protection of intellectual property rights or copyright constitute our positive law in force, wherefore they must be applied to this case. [abuse of rights”…”

“In our legal system, copyright is protected by Law No. 11,723 (consolidated text of Law No. 23,741), and several international treaties ratified by the Argentine Republic: the Berne Convention for the Protection of Literary and Artistic Works (ratified by Law No. 25,140); the Rome Convention for the Protection of  Performers, Producers of Phonograms and Broadcasting Organisations (approved by Law No. 23,921); the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of Their Phonograms (ratified by Law No. 19,963), and the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), also known as Internet Treaties, approved by the Argentine Republic by means of Law No. 25,140, which set forth basic rules for the protection of copyright and Internet rights, and state that local laws must prevent the unauthorised access to and use of artistic works from being facilitated by the Internet.”

“This Court does not ignore the recommendations contained in the Joint Declaration on Freedom of Expression and the Internet, read before the UN on June 1, 2011.”

“Freedom of speech is protected by the Constitution of Argentina and international treaties with constitutional hierarchy (Universal Declaration of Human Rights, Art. 19) Moreover, Law No. 26,032 states that the search for, reception and propagation of information and ideas through the Internet is covered by the constitutional guaranty protecting freedom of speech.”

“Affording the protection granted by the guarantee of freedom of speech to the byte exchange regime of P2P networks, with their exchanges of chunks and metadata among users, and the assistance of trackers in the infringement of copyrights, thus elevating it to the rank of information, would amount to denigrating one of the greatest achievements of free men, elevated to the status as citizens since 1789.”

“Moreover, it would legitimise a voracious instrument which financially weakens publishers and exploits the works and inspiration of independent writers, journalists or bloggers working in all branches of human knowledge or research, by means of the infringement of the terms established for the exchange of ideas and information, which are the pillars of the freedom of speech.”

When Australia decided to enact a blocking regime, it released an Explanatory Memorandum and a Revised Explanatory Memorandum. The Revised Memorandum explained that the blocking order proposal engaged the following human rights covenants (to which Canada is also a party):

  • the right to freedom of opinion and expression – Article 19 of the International Covenant on Civil and Political Rights (ICCPR)[ii]

  • the right to take part in cultural life – Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).[iii]

It concluded that the proposed blocking regime was compatible with and facilitates human rights under Art 15 of the International Covenant because it promotes rights. It also concluded that to the extent that it may limit human rights, these limitations were of an incidental nature and were reasonable, necessary and proportionate.

The proposed amendments would engage the right to freedom of opinion and expression as contained in article 19 of the ICCPR. Amongst other things, article 19 states that individuals must have the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers’. Under article 19(3), the right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by law, pursue a legitimate objective, be rationally connected to the achievement of that objective and a proportionate means of doing so. 

The Bill would enable the Federal Court to order a CSP to block access to an online location operated outside Australia that facilitates access to infringing content. The effect of the order would be to prevent Australian subscribers of CSPs that are subject to the order from accessing some online locations. These subscribers would be denied access to infringing copyright material accessed from those locations such as unauthorised films, television programs and music. They would also be denied access to any programs or other tools available at these online locations that facilitate the infringement of copyright.

An injunction is a reasonable, necessary and proportionate response to the problem of protecting the rights of creators and their licensees from infringing material being distributed to, or accessed by, persons in Australia. The injunctions power would be subject to a number of threshold limitations. The provision would only capture online locations that have the primary purpose of infringing copyright or facilitating the infringement of copyright. This excludes online locations that are mainly operated for a legitimate purpose, but may contain a small percentage of infringing content.

It is possible to take direct action against an online location within Australia under the Act (section 115), but it is difficult to take action against the operator of an online location that is operated outside Australia.

Article 15 of the ICESCR creates the right to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which the individual is the author. The steps to be taken to achieve the full realisation of this right shall include those necessary for the conservation, development and the diffusion of science and culture. The Committee on Economic, Social and Cultural Rights’ General Comment No. 17 (2005) states that in order to avoid rendering the provision on protection of moral or material interests ‘devoid of any meaning, the protection afforded needs to be effective in securing for authors the moral and material interests resulting from their productions’.

The proposed amendments would promote the right to benefit from the protection of the moral or material interests in a production, by strengthening the protection provided to copyright owners in enforcing their copyright. In many cases copyright infringement results in lost sales for creators and their licensees, detracting from the protection of the material interests that result from their literary or artistic productions. The proposed measures would prevent persons in Australia from accessing material from infringing online locations.

The Bill is compatible with and facilitates human rights because it promotes rights. To the extent that it may limit human rights, these limitations are of an incidental nature and are reasonable, necessary and proportionate.

It may be argued that blocking orders are required to promote freedom of speech and protect human rights and comply with Canada’s other treaty obligations.

I referred above to the Michelin case in which the Federal Court noted that copyright restrictions on speech are justified by Canada’s international treaty obligations to protect the rights of authors.

“The protection of authors and ensuring that they are recompensed for their creative energies and works is an important value in a democratic society in and of itself. As well, the pressing and substantial nature of the Copyright Act’s objective is buttressed by Canada’s international obligations in treaties like the Berne Convention of 1886 as revised in Berlin in 1908 and in Rome in 1928: Schedule III (Section 71) of the Copyright Act, and Bishop (supra) at pages 473-474.” (Cie générale des établissements Michelin – Michelin & Cie v CAW – Canada, (1996), 71 CPR (3d) 348 BOA Tab 50, CP Tab 4(B).

I also referred above to the Capif case which justified granting a blocking order against predominately infringing sites based on the international treaties that Argentina was a party to. I also referred above to the Australian Memorandum.

Canada is also a party to the CUSMA. Article 20.88.1 of the CUSMA expressly requires parties to the treaty to provide enforcement procedures that permit effective and expeditious action by rights holders against copyright infringement that occurs in the online environment.  In addition, parties are required to provide legal incentives for ISPs to cooperate with copyright owners, or take other action, to deter the unauthorized storage and transmission of copyrighted materials.

20.88.1The Parties recognize the importance of facilitating the continued development of legitimate online services operating as intermediaries and, in a manner consistent with Article 41 of the TRIPS Agreement, providing enforcement procedures that permit effective and expeditious action by right holders against copyright infringement covered under this Chapter that occurs in the online environment.

Accordingly, each Party shall ensure that legal remedies are available for right holders to address that copyright infringement and shall establish or maintain appropriate safe harbors in respect of online services that are Internet Service Providers. This framework of legal remedies and safe harbors shall include: (a) legal incentives for Internet Service Providers to cooperate with copyright owners to deter the unauthorized storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorized storage and transmission of copyrighted materials; (emphasis added)

These authorities strongly underscore the usefulness of blocking order regimes and explain how they can impede infringements, promote human rights, and help to comply with Canada’s treaty obligations.

Final remarks

I have included in this submission references and links to some articles published in blog posts. These form part of my submissions and are incorporated by reference here. They are listed below for ease of reference and a copy of them is attached to this submission.

** There are some changes in the blog from my submission given the nature of the forum and medium. Some quotations are from unofficial translations of foreign cases

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[i] For example, the network (mere conduit) exception only applies where the activity of the service provider “is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored” and when the service “is in no way involved with the information transmitted”. A service provider who deliberately collaborates with one of the recipients of a service in order to undertake illegal acts goes beyond the activities of “mere conduit” and as a result cannot benefit from the liability exemptions established for these activities. A hosting provider also loses the benefit of the safe harbor if it obtains actual knowledge or awareness of infringing activities and does act expeditiously to remove or to disable access to the information concerned.

[ii] Art. 19.2 Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

[ii] 1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. 3. The States Parties to the present Covenant undertake to respect the freedom  indispensable for scientific research and creative activity.4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

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