Canada’s system of copyright enforcement is internationally recognized as striking a good balance between the rights of artists and creators, on the one hand, and the right to free expression, by individuals and groups, on the other. Importantly, the Canadian intellectual property rights regime protects people from false claims of copyright infringement, and needless takedowns of legitimate online speech.
We can be proud of this made-in-Canada solution—won after a lengthy public and industry consultation—that came fully into force only this January. Specifically, with respect to online activity, we should be thankful for Canada’s unique “notice and notice” process, which obliges Internet service providers (ISPs) to let their customers know when they are suspected of infringing a copyright.
The important point here is that under this Canadian process neither the ISP nor the recipient of the notice is required to remove the allegedly infringing online content. Canada’s ISPs are also not required to reveal (to copyright holders) any personal information about their customers who have received notices. Under a “notice and notice” system those seeking the name and IP address of alleged online infringers must get a court order first.
The advantages of the Canadian approach become clear when you compare it with what exists in the United States. Under the U.S. “notice and takedown” system ISPs tend to remove content as soon as they receive a notice. In most cases, that happens even before a court has determined whether any copyright infringement has in fact occurred. This misuse of copyright law is having a chilling effect on free speech. It is also more and more commonly used as a tool of censorship detached from its original purpose.
In 2010, the Centre for Democracy and Technology released a report on meritless copyright takedowns during the 2008 U.S. presidential election. Citing examples from both sides of the political spectrum, the report noted critically that “what motivates these takedowns is often not copyright, but issues not within the [Digital Millennium Copyright Act’s] purview, such as concerns over reputation and false endorsement.”
With takedown regimes being pushed on a global scale by the likes of the Motion Picture Association of America (MPAA) and the International Intellectual Property Alliance (IIPA), and with relentless pressure on Canada from consecutive U.S. administrations to harmonize our intellectual property rights regimes, it’s a wonder we managed to create a system that attempts to find balance on this issue.
That is far from saying that Canada’s copyright regime is perfect. Flaws were exposed in the poor implementation of the “notice and notice” system in January. Already the law is being abused by U.S. anti-piracy firms, who are sending huge volumes of notices to Canadians through their ISPs. In many cases these notices are misrepresenting Canadian law, for example, by demanding settlements or threatening disconnection from the Internet on the basis of alleged infringement associated with an IP address, not a person.
Lawyers, academics and regular Internet users have been calling on Industry Minister James Moore to fix the rules. They want to see a template system for notices that would standardize the process while ensuring people receive accurate information about the possible legal ramifications. Other proposed adjustments include adding a forwarding fee per notice sent, and penalties for sending false infringement claims.
So what does all this have to do with Canada’s Digital Privacy Act (Bill S-4)? First tabled in the Senate in April of last year, the legislation would amend the Personal Information Protection and Electronic Documents Act (PIPEDA) and implement much-needed regulations around security breach disclosure requirements.
On the whole, the bill has been welcomed by academics, but it has one glaring flaw. As written, the legislation would promote the expansion of voluntary warrantless disclosures of personal information, not to law enforcement agencies, but rather to other private companies, without the consent, or even the knowledge, of the person whose personal information is being shared.
Information sharing is meant to be limited in Bill S-4 to situations where there is an investigation into a contract breach, an alleged legal violation, or a possible future violation. While this may appear reasonable, it is actually incredibly broad.
Consider the dozens of contracts (e.g., the infamous Terms of Service agreements attached to new aps and software) a typical person signs every year, often without even reading them. Atlantic Monthly reported in 2012 it would take 76 workdays for an individual to read all the privacy policies they encounter and are asked to sign in a year.
Most grievously, S-4 would render the Canadian “notice and notice” system impotent. ISPs would be granted legal immunity to disclose personal information about their customers to copyright trolls, without the consent or knowledge of the customer affected, and without having to obtain a court order first.
Taking into consideration the manner in which the new system is already being exploited by U.S. media firms, any extension of powers for ISPs to voluntarily make warrantless disclosures of private information would be exposing the public to great risk, and undermining our domestic democratic process.
Meghan Sali is Campaigns Co-ordinator for Free Expression with OpenMedia.org, a community-based organization that safeguards the open Internet. Steve Anderson is Executive Director of OpenMedia.org.