The Canadian Government is exploring if and how current copyright law should be amended to better fit the present landscape.
To this end, Canada’s Innovation, Science and Economic Development department launched a consultation asking for feedback on a wide range of proposals.
The ultimate goal is to deter piracy by helping copyright holders better protect their content. At the same time, the Government wants to safeguard the rights and freedoms of individual citizens.
This isn’t a new topic in Canada where there have been similar consultations in the past. Just two years ago, this resulted in a thorough review of the Copyright Act, which advised against implementing a broad site-blocking scheme.
Today, however, the site-blocking proposal is again being considered, albeit in a different form.
New Plan to Block and Deindex Pirate Sites
The proposal notes that any new blocking legislation would be primarily focused on commercial-scale infringement. It shouldn’t target individuals directly, although they ultimately are the ones whose access is blocked.
The general idea would be to change the law to ‘expressly’ allow courts to require ISPs to block sites and services. Similarly, courts should also be able to order search engines such as Google to remove these pirate sources from search results.
These orders can be issued without assuming any liability on the part of Internet providers or search engines, who can keep their roles as neutral service providers.
“The Act could be amended to provide expressly for injunctions against intermediaries to prevent or stop online copyright infringement facilitated by their services even where they are not themselves liable for it, such as where they may be protected by the safe harbors,” the proposal reads.
The Government adds that these injunctions should be issued by courts that are expected to guarantee the highest standards of procedural fairness.
Staydown and Termination Injunctions
In addition to site-blocking and search engine de-indexing, courts should also be able to order online service providers to prevent infringing content from being re-uploaded, or to suspend or terminate access to infringing customers.
Cementing these options into law is warranted, according to the Government, as courts have already issued site blocking and de-indexing injunctions in the past. This includes the GoldTV case, which is currently being appealed by Internet provider TekSavvy.
This begs the question; if these injunctions are already an option under current law, why would anything need to change?
Fewer Court Cases?
According to the proposal, clearer legal guidelines could help to bring copyright holders and intermediaries together, which may ultimately lead to fewer court cases.
“This legislative scheme could moreover deter litigation by encouraging intermediaries, rights holders and others to work together to establish a suitable framework for dealing with alleged infringements facilitated by the intermediaries’ services,” the proposal reads.
This indirectly suggests that the Government hopes that the end result will be more voluntary agreements. While some ISPs may be open to the idea of blocking pirate sites without a court order, we doubt that all are.
What About the Copyright Act Review?
To some people, it may come as a surprise that the Government is proposing a site-blocking scheme now as an earlier review of the Copyright Act dismissed this idea. However, the wording of the proposal appears to be carefully crafted to fit the outcome of the earlier review.
For example, the review dismissed the idea of a “non-judicial” site-blocking scheme or “narrowing the safe harbor” of online service providers. Instead, it argued that new legislation should be focused on “commercial-scale infringers.”
The new proposal suggests a “judicial” site-blocking scheme that keeps safe harbors intact and is primarily aimed at commercial-scale infringers. This ticks all the right boxes, although that will undoubtedly be contested.
A full overview of all the proposals, which also includes new measures against repeat infringers and plans for compulsory licensing agreements, is available on the public consultation page published by the Innovation, Science and Economic Development department.