Illegal file trading will likely exist on the internet for the foreseeable future. As a result we are faced with the challenge of upholding the notions of copyright online or changing the scope of such laws and legalizing, to some extent, file trading. The former is an objective which I believe Tariff 22A falls short of addressing adequately and the latter has lead to unease at the Copyright Board and elsewhere. I argue here that the affirmation of copyright laws online is possible and that the principle elements of a working model can be found in the Canadian Copyright Board’s Tariff 22 decision as opposed to the recently approved Tariff 22A.

The impact of tariffs has lead many, including Michael Geist, to opine that downloading in Canada may be legal. A current version of their argument can be summarized as follows.

1. Tariff 22A’s approval of a tariff on communication means that the transmission of the files over the internet, regardless of their copyright status, will be legalized.
2. The Private Copying Levy would then allow individuals to lawfully copy those files to any personal medium.

Viewed in this light blanket tariffs are seen as legalizing the actions they target and they may therefore have unintended consequences. Any proposal for copyright reform must therefore address the question of legality head on.[i]

Tariff 22 would have seen ISP’s which make income via advertising pay copyright holders 3.2% of their gross revenues or 25 cents per subscriber, whichever was greater. Large media corporations (read ISP’s) vehemently opposed the scheme on the underlying basis that the model would destabilize the media playing field. They could no longer be certain of the costs they would need to pass on to users as expenses would be tied to revenue. Market neutrality is therefore another key consideration for any working model.

The SCC’s Tariff 22 decision also clarified that any version of copyright enforcement on the internet needs to hold those responsible for communication under s.3(1)(f) of the CCA legally responsible. Specifically, the decision held that the ISP’s could not be held responsible as they were merely conduits falling under the exception in s.2.4(1)(b).

More generally we can also say that any solution should be capable of easy implementation. To this end the proposals made in Tariff 22 are again of value. However, instead of targeting ISP’s we need to leverage their relationship with users. There are a small finite number of ISP’s and their networks clearly support illegal file trading. Furthermore, a solution working with ISP’s could target a stable relationship rather than a volatile technology. Over the past 20 years subscriber relationships with ISP’s have not changed appreciably despite substantial technology advances. In opposition Tariff 22A targets individual websites vastly increasing the number and instability of control points and doing little to stem the flow of illegal file trading. In fact the tariffs may only serve to further handicap legitimate operations.

The solution I propose has two principle components. Its first branch recommends that our existing legal solutions (i.e. physical enforcement) for resolving communication infractions should remain in place. This means that when illegal communications reach a level of public pervasiveness which is unacceptable the source of such actions can be conventionally eliminated. This occurs regularly today and has been compared to the war on drugs.[ii] Though far from perfect stemming the flow into popular society may be the best we can achieve.

The second branch addresses the fact that a lack of total elimination results in recognizable losses for artists. To this end the individuals (i.e. the communicators) in the network need to be fined based on the type and magnitude of their copyright transgressions.[iii] With the use of passive file tracking at the ISP level[iv] it would be relatively easy to establishing the actus reus component of the criminal activities taking place while at the same time respecting privacy rights.[v] This provides us with the legal grounding necessary to issue a fine. ISP’s would only be responsible for assessing and collecting fines which is in keeping with their exception right under s.2.4(1)(b) of the CCA. Finally, the fines can be established as set rates thereby eliminating any market imbalances.

The end result is that the arguments made by the ISP’s are quelled but the principle ideas and easy implementation of the original Tariff 22 proposals are retained through co-operative methods while avoiding the presumption of legality created by tariffs.

[i] This was also recognize by CRIA in its Tariff 22A arguments before the Copyright Board in which is suddenly reversed its previous stance on tariff viability.
[ii] Jack Goldsmith and Tim Wu, Who Controls the Internet? Illusions of a Borderless World (New York: Oxford Press 2006) at 179.
[iii] This is in accordance with s.42 of the Canadian Copyright Act – which creates the criminal penalty for copyright infringement.
[iv] In fact most of these technologies are already used by ISP’s to shape network traffic.
[v] For further clarification see the Canadian Privacy Act under “Collection, Retention and Disposal”