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Docs #9749544-v2-power point-presentation_-_7th_annual_telecommunications_forum

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  • 1. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 Canada in Elsinore: How Canada Can Pass Meaningful Copyright Legislation Daniel G.C. Glover, McCarthy Tétrault LLP 7th Annual Telecommunications Forum
  • 2. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 2Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform Critical Themes for Copyright Reform ¬ Time is of the essence ¬ Catch phrases can kill you ¬ We need to find common ground
  • 3. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 3Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform Time Is of the Essence ¬ Canada last had meaningful copyright reform in 1997, when the previous Bill C-32 passed ¬ The studies fuelling policy choices dated from 1994 and 1995, i.e. the era of the “Information Highway” ¬ Recommendations included: ¬ allowing copyright owner to determine whether and when “browsing” should be allowed ¬ allowing “bulletin board operators” exemptions from liability when they “did not have actual or constructive knowledge that the material infringed copyright” and “they acted reasonably to limit potential abuses”
  • 4. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 4Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform To be or not to be… ¬ 1911: Backbone of Copyright Act introduced for first time in England ¬ 1997: Bill C-32 brings in neighbouring rights, educational exemptions, new collective society regime ¬ 1998: Canada agrees to the WIPO Internet Treaties, including “making available” right, TPMs, and “enforcement procedures” providing “effective action” and “expeditious remedies” against infringement ¬ 1998: Larry Page and Sergey Brin incorporate Google Inc. with help of $100,000 cheque from Andy Bechtolsheim
  • 5. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 5Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform To be or not to be… ¬ 1999: Shawn Fanning launches Napster while attending Northeastern University ¬ Global users measured at 27 million by 2001 ¬ 2001: BitTorrent protocol launched ¬ In North America, 53.3% of all upstream traffic on an average day can be attributed to P2P (Sandvine, 2010) ¬ 88.9-98.1% of BitTorrent traffic infringing: 2010 Internet Commerce Security Laboratory study ¬ 2005: Former PayPal employees launch YouTube ¬ By 2010, YouTube averages more than a billion daily views
  • 6. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 6Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform How Does Canada Compare? ¬ Since 1997, Canada (led by Liberal, Tory, majority and majority governments alike) has: ¬ commissioned nine major reports on copyright reform ¬ commissioned eight economic impact studies ¬ commissioned five cultural heritage studies ¬ brought three major copyright reform bills to first reading ¬ passed one bill closing an Internet retransmission loophole ¬ In 2000, Vanuatu passed legislation ¬ protecting TPMs and rights management information ¬ exempting certain temporary reproductions made in the process of a digital transmission of a work ¬ protecting expressions of indigenous culture
  • 7. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 7Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform “The Perfect Is the Enemy of the Good” ¬ "Le mieux est l'ennemi du bien” - Voltaire, Dictionnaire Philosophique ¬ Waiting for a perfect bill risks harming: ¬ the stability of the system ¬ the certainty of stakeholders, including the creative community, Internet intermediaries, individual users ¬ economic growth in creative copyright industries ¬ Canada’s international reputation ¬ Canada’s ability to protect its interests in trade negotiations
  • 8. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 8Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform Digital Britain: A Good Example Introduction to Digital Britain, Final Report “On 26 August 1768, when Captain James Cook set sail for Australia, it took 2 years and 320 days before he returned to describe what he found there. “Yesterday, on 15 June 2009, 20 hours of new content were posted on YouTube every minute, 494 exabytes of information were transferred seamlessly across the globe, over 2.6 billion mobile minutes were exchanged across Europe, and millions of enquiries were made using a Google algorithm.” (1 EB = 1,000,000,000,000,000,000 bytes of information)
  • 9. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 9Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform Digital Britain: A Good Example ¬ Copyright reform tied to concrete, forward-looking goals: ¬ having 100% broadband coverage in the UK by 2012 ¬ three-year plan to boost digital participation ¬ fund to invest in next generation broadband ¬ Digital Economy Act, 2010, sets framework of rightsholder/ISP relationship but leaves operational details to regulator ¬ Digital Britain is proof that government can: ¬ identify copyright reform as a true priority ¬ decouple it from the political ¬ delegate it to a single entity whose only focus is the digital agenda ¬ reach out to stakeholders ¬ create a rolling process
  • 10. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 10Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform Catch Phrases Can Kill You ¬ Three killer phrases: ¬ “Made in Canada”: “We're going to do it in a made-in-Canada way. We're not just going to take what the Americans are doing or what the Europeans are doing. We are going to fit it to the Canadian context and I think that is the right thing to do.” –Tony Clement, March 2010 ¬ “The Copyright Balance”: Watchword of SCC, now employed by everyone from Mihaly Ficsor (former Assistant Director General of WIPO) to Pirate Party of Canada ¬ “Technological Neutrality”: a.k.a. “simplicity”, “flexibility”, “not picking winners” ¬ Abstract principles should never substitute for full consideration of concrete policy goals
  • 11. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 11Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform “Made In Canada” ¬ This is an era where ISPs in Canada facilitate transmissions or host content from all over the world ¬ We risk facing export/import barriers if our laws are substantially different than those of our trading partners ¬ The experiences of forerunner countries provides a palpable model and guidance for courts, resulting in certainty for domestic stakeholders ¬ Are doom and gloom stories about the DMCA real? ¬ Veoh: ISP immune because (i) it reasonably implemented a policy terminating accounts of repeat infringers ; and (ii) accommodated standard technical measures utilized by copyright owners to identify their works ¬ Perfect 10: Until Google had actual knowledge of specific infringements (specific URLs), Google had no duty to act and could not be liable. Google also not required to “supervise or control” third-party websites linked to from its search results ¬ Viacom/YouTube: “General awareness” of infringement not enough. Service provider disentitled to protection only if “it had turned a blind eye to ‘red flags’ of obvious infringement.” ¬ Internet Location Tool, User Generated Content, and Fair Dealing for Educational Purposes provisions are a few of the wildcards in C-32
  • 12. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 12Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform “The Copyright Balance” ¬ All litigators before the Federal Court of Appeal must invoke (or explain away) this term ¬ Unclear that “balance” was ever Parliament’s priority, despite Théberge and CCH ¬ EU Directive, Recital 9: “Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.” ¬ Commentators have identified 32 exceptions in C- 32 despite government’s reservation of the URL balancedcopyright.gc.ca to announce reform
  • 13. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 13Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform “Technological Neutrality” ¬ There can be serious unintended consequences in drafting law to apply neutrally to all present and future technologies ¬ Making a book available on a bookshelf ≠ posting it to Internet ¬ The problem of parasitism: Pirate services try to shelter under technologically neutral ISP exceptions “TorrentPortal is like Google™, in that it links only to torrent metafiles and takes a cache of such files. None of the data transferred by or stored on TorrentPortal servers is content linked to by torrent files.” “Users are attracted to the isoHunt Search Engine because of superior technical features and the breadth and quality of search results. Any ‘popular copyrighted work’ reached through information in isoHunt Website is as ‘freely available’ through other search engines (such as Google Search engine).”
  • 14. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 14Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform Finding Common Ground ¬ Illegal networks are a source of malware, bandwidth hogging, security breaches, network insecurity ¬ Tariff 22 (SCC, 2004): “copyright liability may well attach if the activities of the Internet Service Provider cease to be content neutral, e.g. if it has notice that a content provider has posted infringing material on its system and fails to take remedial action.” ¬ Status quo means no clear safe harbours for ISPs, uncertain scope of rights for rightsholders, fear of scapegoating lawsuits for consumers ¬ Is a “red flag” rule a stable business standard?
  • 15. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544 15Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform Key Improvements ¬ Process should have clear leadership and accountability – Ministry of Digital Affairs? ¬ Process should be rolling and responsive ¬ Ordinary rule should be that Canada applies international standards unless there is a clear & powerful case for other route ¬ Owners and ISPs need “Getting to Yes” mindset – i.e. identifying their interests rather than hunkering down in current positions
  • 16. VANCOUVER Suite 1300, 777 Dunsmuir Street P.O. Box 10424, Pacific Centre Vancouver BC V7Y 1K2 Tel: 604-643-7100 Fax: 604-643-7900 Toll-Free: 1-877-244-7711 CALGARY Suite 3300, 421 7th Avenue SW Calgary AB T2P 4K9 Tel: 403-260-3500 Fax: 403-260-3501 Toll-Free: 1-877-244-7711 TORONTO Box 48, Suite 5300 Toronto Dominion Bank Tower Toronto ON M5K 1E6 Tel: 416-362-1812 Fax: 416-868-0673 Toll-Free: 1-877-244-7711 OTTAWA Suite 200, 440 Laurier Avenue West Ottawa ON K1R 7X6 Tel: 613-238-2000 Fax: 613-563-9386 Toll-Free: 1-877-244-7711 MONTRÉAL Suite 2500 1000 De La Gauchetière Street West Montréal QC H3B 0A2 Tel: 514-397-4100 Fax: 514-875-6246 Toll-Free: 1-877-244-7711 QUÉBEC Le Complexe St-Amable 1150, rue de Claire-Fontaine, 7e étage Québec QC G1R 5G4 Tel: 418-521-3000 Fax: 418-521-3099 Toll-Free: 1-877-244-7711 UNITED KINGDOM & EUROPE 125 Old Broad Street, 26th Floor London EC2N 1AR UNITED KINGDOM Tel: +44 (0)20 7489 5700 Fax: +44 (0)20 7489 5777 McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544