On technical protection measures, we support the bill's strong protection for TPMs, both access control and copy control, without which new business models like Netflix would not be possible in Canada. Allowing TPMs to be broken for private purposes or other non-infringing uses would totally undermine these business models.
Enabling infringement. The bill needs to be fixed to clarify that the enabling provisions apply to services that are designed or operated to enable or induce acts of infringement, including specific reference to hosting and caching service providers. These changes are necessary to address the reality that sites that host and stream or permit downloading of illegitimate content are becoming the most significant source of illegal distribution of film and television content online.
The user-generated content exception. This exception should either be scrapped or amended to ensure that it does not prejudice copyright owners. If the exception is maintained, it should be limited to only permit the creation of original, transformative, user-generated content for the individual's personal use if all of the permitted acts can be considered fair dealing under the existing copyright law test and the permitted acts do not have any adverse effect on the market for the original.
With regard to Internet service providers, we believe the bill's ISP safe harbour provisions need to be fixed to ensure that illicit sites such as those that encourage storage of infringement files, host, distribute, or make available illegitimate copies of protected content are not inadvertently immunized from liability. Moreover, to ensure consistency with international standards, ISPs should be required to, one, have an effective policy to curb copyright infringement on their networks, particularly in the case of repeat offenders, and two, take action to remove or disable access to infringing works where they have actual or constructive knowledge of infringing activity, in keeping with the Supreme Court of Canada's comments in the Tariff 22 decision. This would be in order to qualify for their safe harbour.
Finally, the bill should provide copyright holders with injunctive relief against ISPs whose service is being used by a third party to infringe copyright, i.e., to block access to illegal sites.
Our final technical submission is regarding statutory damages. We submit that the bill should be amended to provide for effective statutory damages, which will provide a real deterrent--as opposed to a licence to steal--to illegal file sharing and give copyright owners the ability to stop large-scale enablers of online theft.
If the government wishes to maintain a cap on statutory damages for individuals, it should apply to infringement for private purposes rather than non-commercial purposes. It should be on a per infringement basis, as opposed to encompassing all infringements. Lastly, it should be available to all copyright owners, rather than to only the first rights holder having the ability to sue.