Bill C-32 (40th Parliament, 3rd Session) Committee on Feb. 17th, 2011

[Serge Cardin, Bloc, Sherbrooke, QC]

The providers can send out notices—

[Patrick Roy]

Obviously, in fact—

[Serge Cardin, Bloc, Sherbrooke, QC]

—without there being too much follow-up.

[Patrick Roy]

We obviously need something more than notices.

[Serge Cardin, Bloc, Sherbrooke, QC]

It's a bit soft.

[Patrick Roy]

We obviously need something more than notices. As you said earlier, I think the companies that provide Internet services have the resources to determine exactly what is circulating on their bandwidth. Those companies should be more responsible and we should compel them to prevent this kind of behaviour.

[Serge Cardin, Bloc, Sherbrooke, QC]

What approach do you advocate?

[Patrick Roy]

I'm not an technical expert. I would ask Wendy to answer your question.

[Wendy Noss]

I would say a couple of things.

There are different models, and one of the benefits of being so far behind the curve here in Canada is that we can learn from international best practices.

Certainly you see different models around the world. Some countries, such as France, have a legislated, graduated response. That is in New Zealand and Korea and elsewhere. Others, like many European countries, have a provision in their legislation that brings ISPs and rights holders to the table by saying that if you want the benefit of a safe harbour, you need to have an effective policy to deal with repeat infringers who use your network.

If all you're doing is sending notices, it's just notice after notice after notice. It's like saying, “Stop, or I'll tell you to stop again”. You need to have escalating deterrent measures that people will take seriously to change their behaviour, because that is the objective of any sort of program. It's to get people to change their behaviour, which they're not going to do if all they get is a notice.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll move to Mr. Angus for seven minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you for coming.

Before we start talking about how the sky is falling, I'd like to say that I think we're in the golden age of Canadian cinema. Congratulations. I think the products we're putting out are astounding, and we're gathering international audiences, so thank you for your excellent work.

Obviously we all have an interest in maintaining a strong and vibrant Canadian film industry, and we obviously have a number of competing interests. We're trying to find that balance here.

I'm interested in the case of isoHunt, because they're pointed out time and again. Ms. Noss, has your organization ever attempted to sue isoHunt or shut them down?

[Wendy Noss]

We're a Canadian non-profit association. The MPAA member companies, which are the companies we serve, have sued isoHunt in the United States. They were successful. They got an injunction because isoHunt is inducing infringement on a massive scale.

[Charlie Angus, NDP, Timmins—James Bay, ON]

But have you tried it in Canada?

[Wendy Noss]

No. They've sued in the United States and have been successful because the legal framework there provides that if you induce infringement online, you are liable, so that's where they sued and that's where they've been successful. Unfortunately, the appeals are still winding their way through the courts, and that's the position we're in now.

[Charlie Angus, NDP, Timmins—James Bay, ON]

CRIA has launched a lawsuit here in Canada against what they're doing in Canada. I wouldn't think CRIA would have taken that on if they didn't think they had a chance of winning, so I'm wondering why has isoHunt been sitting out there all this time without attempts to shut them down within the Canadian jurisdiction. If CRIA is doing it, wouldn't you think...? The film industry has a huge stake in dealing with them.

[Wendy Noss]

I'd say two things, Mr. Angus. The first is that I'm not here to speak on behalf of CRIA. Second, remember that isoHunt sued in Canada, seeking a declaration that its activities here were perfectly legal. At the same time that our members were suing isoHunt in the United States under their legal framework that made it clear that what they doing was illegal, isoHunt was suing the recording industry in Canada, saying that what isoHunt was doing was perfectly legal.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Yes, but that was a frivolous case.

[Wendy Noss]

It's the same case, Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'm just wondering, given that there's an immense financial loss with groups like isoHunt, why a case hasn't been brought so far. Has anybody looked into this?

[Wendy Noss]

This is what we're here today to do: to look to all of you around this table who have said that you want to make it clear that enabling piracy online in Canada is illegal. That's what we're hopefully here to do today.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Certainly.

The issue of safe harbours comes up again and again. I'm trying to get a sense of where we would want to have our legislation come down, because the issue of enabling massive copyright infringement is something we all have a stake in stopping. There is concern about sweeping up all kinds of people in the wake. In the U.S. we saw 5,000 John Doe lawsuits on The Hurt Locker. That was followed by 20,000 lawsuits for five films, followed by 30,000 lawsuits. This is being brought by the U.S. copyright group. In their John Doe lawsuits, basically they track anybody and they go after the ISPs. Would you support provisions like that here in Canada?

[Ted East]

We're not interested in sweeping up the John Does. We're looking for legislation that basically stops online piracy and illegal file sharing, which requires changes to the bill that exists. Whatever laws we have here are going to be different from those in the United States. As Patrick referred to earlier, we need massive education, because a significant portion of the population in Canada, particularly younger people, have grown up in an environment where piracy seems to be okay, where it has no consequences. We have notice and notice, but everybody that they know is doing it, so changes have to be made.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I agree with you. There's a lot of interest in whether these lawsuits—now it's 50,000 to 100,000-plus—will start to succeed. Part of that is a push by some of the rights holders to go after the ISPs in the U.S., even though they have notice and takedown. They're saying they want to be able to get names and all kinds of information in these mass lawsuits, and the ISPs, even though they follow notice and takedown, are reluctant to get involved in mass lawsuits.

Would you suggest we change our safe harbour provisions here to allow those kinds of mass lawsuits, such as 20,000 lawsuits at a time?

[Wendy Noss]

I think there may be a bit of confusion, and hopefully I can help you in terms of comparing the notice and notice and notice and takedown. In terms of film and television content, there are two different types of online piracy the business folks here are concerned with. The first is content that is hosted and allows people to either download and stream, and that's where you have a notice and takedown regime to deal with, because you want to get that infringing content off the web.

In Europe, for example, they deal with it in a different way. They say you can't have the benefit of a safe harbour if you have actual or constructive knowledge of what's happening on your server.

[Charlie Angus, NDP, Timmins—James Bay, ON]

No, I understand that. I'm just asking because there's a push by some of the rights holders in the U.S. to push the ISPs to cough up 20,000 to 30,000 names at any given time. Whether or not that is something you're interested in, or you're interested in being able to take the stuff down off the site is what I want to know. Do you support this mass lawsuit approach, or do you want to be able to shut down individual sites?