Thank you, Mr. Chairman.
Good morning, committee members. My name is Craig McTaggart and I am director of broadband policy at TELUS Communications Company.
Thank you for the opportunity to present TELUS’ views on BillC-32. TELUS considers Bill C-32 to be a strong and balanced attempt to update Canada’s copyright legislation for the digital age.
In my brief prepared remarks, I want to focus on the Supreme Court of Canada’s 2004 decision in the case of SOCAN v. CAIP, or the Tariff 22 case, because it established the legal principles for intermediary liability that Bill C-32 would at long last codify into statute. I do so because the decision and the principles it embodies highlight a crucial distinction between neutral, passive intermediaries, which are not legally responsible for what their users do online, and what have come to be known as the wealth destroyers, those who actively enable mass copyright infringement online.
Let me be clear right off the bat. TELUS recognizes that online piracy is a problem and encourages Parliament to arm rights holders with effective tools to directly pursue those who actively enable it. I emphasize “directly” to distinguish that approach from proposals by some rights holders to offload that responsibility onto third parties, such as ISPs. BillC-32 wisely limits the role of ISPs to assisting rights holders in the enforcement of their rights by putting Internet users on notice that a rights holder alleges that they have infringed copyright online and to retaining evidence to support subsequent legal action.
To understand why this regime is the wise choice, one has to go back at least to 2004 to see how the Supreme Court defined the scope of ISP liability for what happens on the Internet. The Tariff 22 decision established the principle that ISPs neither communicate nor authorize their customers to communicate copyright works on the Internet. The court interpreted paragraph 2.4(1)(b) of the Copyright Act, which says that persons who only provide the means of telecommunication necessary for another person to so communicate a work do not themselves communicate the work, nor are they parties to a communication. Rather, it is those who actually post copyright materials to the Internet who do the communicating.
The court described this regime in the following terms: “So long as an Internet intermediary does not itself engage in acts that relate to the content of the communication,”--that is, whose participation is content neutral--“but confines itself to providing 'a conduit' for information communicated by others, then it will fall within s. 2.4(1)(b)”, the general safe harbour for communications carriers.
The Supreme Court held that in the normal course, Internet access and hosting providers are not users of copyright rights, nor are they liable for the uses made by their customers. Like telephone companies, the court said, ISPs neither know what our customers do on the Internet, nor are we in a position to control it, nor, incidentally, does anyone want us to.
The Supreme Court went on to say that the attributes of mere conduits such as ISPs “include a lack of actual knowledge of the infringing contents, and the impracticality (both technical and economic) of monitoring the vast amount of material moving through the Internet, which is prodigious”. That was in 2004.
Internet traffic continues to grow at a compounded annual growth rate of about 45%. The court recognized the public policy rationale for immunizing content-neutral intermediaries from copyright liability as follows:
Nevertheless, by enacting s. 2.4(1)(b) of the Copyright Act, Parliament made a policy distinction between those who abuse the Internet to obtain “cheap music” and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth.
These are the principles that underlie the ISP-specific provisions in Bill C-32, like its predecessors, and they remain the right principles today.
What has changed since 2004, of course, is an awareness of the need to equip rights holders with additional tools to make it easier for them to enforce their rights against, in the Supreme Court’s words, “those who abuse the Internet.”
TELUS would support amendments that would give rights holders more powerful tools to go after those who actively enable infringement, and also amendments that would prevent the bad guys from taking advantage of the legal safe harbours intended to protect only the good guys.
Like Canada's other major ISPs, TELUS has voluntarily performed notice and notice service for approximately nine years. The decision to formalize the notice and notice regime recognizes the legal reality that ISPs cannot be put in the position of having to decide whether content should be taken down, in the case of hosted content, or whether to discipline their customers based only on an allegation from a rights holder in the case of file sharing. Under Canadian legal values, only a court can determine whether a law has been broken.
I'll end it there.