To begin, we would like to talk about the liability of ISPs or Internet service providers.
For ISPs, the only consequence of Bill C-11, as you know, is requiring them to notify an offender when rights owners report potential infringements of their rights. That scheme thus places the responsibility of reporting and prosecuting infringers squarely on the shoulders of right owners. As was stated earlier this morning, right owners do not have the capacity or resources to police the Web.
As well, habitual offenders will not be deterred by such a system and will simply keep up their illegal activity knowing that there will be no penalty from their ISPs. The ISPs themselves will simply go on hosting and allowing the unauthorized use of their works.
However, the ISPs have access to enormous resources that could be used to combat piracy, educate consumers and compensate the music industry for losses sustained. Yet, the proposed legislation stops short of asking ISPs to take any such actions or to compensate right owners in any way. The balance between the rights of creators and the interests of users that the government is seeking in Bill C-11 has therefore not been achieved—far from it.
Why not assign the people who are controlling and monetizing the bandwidth the job of introducing practices that protect the rights of the people who produce the content that circulates on it? How could we allow ISPs devoid of any liability to highjack the commercial appeal of content for the purpose of selling more subscriptions? ISPs are part of the solution and must never be excluded from the debate.
We therefore recommend, to make the notice and notice regime more effective, that ISPs be required, at a minimum, to disclose the names and addresses of potential offenders, and that notices be published in a register and kept there for a minimum of three years. That procedure would enable us to verify the efficiency of the system and to revise it if it proved to be unable to curb piracy. CAMI also recommends that Internet service providers, which have largely benefited up until now from the circulation of content provided by right owners without any remuneration or compensation in return, be made liable.
Second, the exception for user-generated content needs to be modified. The so-called "YouTube exception" makes it possible, for instance, for individuals to disseminate family videos on a pop music soundtrack. Individuals may also post any new work derived from a work, thus causing creators almost completely to lose control. Any individual can thus cause considerable harm to the market for a work.
Currently, websites whose contents are managed by users, such as YouTube, are required by law to negotiate conditions either with copyright owners individually or with organizations that represent them collectively. If Bill C-11 were to become law, Canada would become the first country in the world where companies such as YouTube would have the right to use protected works to generate revenue without any obligation to compensate content creators.
We believe that the current scope of this exception is too wide and causes irreparable harm to right owners, who have the right to benefit from this economic model in the making. We therefore recommend that the government limit the scope of the exception to acts accomplished for personal use and to limit this practice to works that have already been published or made available to the public with the agreement of the right owner.