CBA Canvassed Issues on IPS Liability in Now Dead Bill C-32

Kalen Lumsden is a JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

Over 30 days in January and February of 2011, Google received over 20 notices of copyright infringement from the Motion Picture Association of America (MPAA). Some of these automatically processed notices threatened Google with “suspension of internet activities” unless the infringing material was immediately removed.  According to TorrentFreak, most of the infringement occurred on Google’s public WiFi network, though a few originated from within Google’s offices.

In its Submission on (now dead) Bill C-32, the Canadian Bar Association (CBA) discussed the efficacy of Canada’s “notice and notice” system of copyright infringement notice, which lacks a penalty, as compared to the American “notice and takedown” system, demonstrated above. A concern of some working group members was that the current Canadian system “may not provide enough of an incentive for network services to assist copyright owners in preventing infringement” [page 30].

The working group discussed the possibility of amending the former Bill C-32 to compel ISPs to disclose the identity of infringing parties to allow for a civil claim, a system similar to that in the United States. In response, members felt that disclosure of personal information should first require a court order. Others felt the present system functioned sufficiently and merited being sanctioned in sections 41.25 to 41.27 of the now dead Bill C-32. Unlike in the United States, s. 38.1(3)(b) of Bill C-32 would have introduced a damages cap of $5,000 for non-commercial infringement, with a minimum penalty of $100. Some members considered this non-punitive and in line with Canadian values, while others highlighted the utility of large damages as a deterrent.

The “notice and notice” section of the CBA’s Submission was representative of the entire piece in that the working group tidily summarized the range of potential policy issues and implication of various aspects of C-32. That they were “often unable to agree upon an assessment of specific provisions from a policy perspective” was indicative of the larger debate surrounding the implementation of C-32 [page 7].

Their summary of multiple stakeholder perspectives focused on the binary considerations of Users and Owners/Creators whose interests defined the debate. Perhaps tellingly, the conflation of Owner and Creator interests may have been an over-simplification. When they are the same person, their interests are inextricable. However, often creators’ and rightsholders’ interests do not coincide.  In some contexts there may be three distinct perspectives or the creators’ and users’ perspectives might be aligned, as creators are also users. While the CBA’s Submission may not have engaged specifically with these considerations, it was not their focus. Rather, they successfully provided an overview of the policy perspectives on Bill C-32.