Good afternoon. I'm Brian Isaac. I'm the chair of the Canadian Anti-Counterfeiting Network, which we refer to as the CACN. I'm also a partner with Smart and Biggar, Canada's largest firm practising exclusively in intellectual property.
Thank you for the opportunity to present today. Due in part to the short time between our receipt of the invitation to participate and our participation, we have not yet submitted our written submissions, but plan to do so in the coming weeks.
The Canadian Anti-Counterfeiting Network is a national coalition of individuals, companies, firms, and associations, that have united in the fight against product counterfeiting and copyright piracy in Canada. We're going against IP crime. The members of CACN include Canadian organizations, companies, and practitioners who have hands-on experience enforcing against IP crime, including copyright piracy in Canada.
The issue of IP crime legislation has been studied for years in Canada. In 2007, the Standing Committee on Industry recognized that Canada's IP crime laws needed to be amended, and recommendations included ratifying the World Intellectual Property Organization Internet treaties that Canada signed in 1997.
While Bill C-32 does not address all the issues that need to be addressed relating to the problem of counterfeiting and piracy in Canada, and that includes addressing some other acts, such as the Trade-marks Act and customs legislation, it does address the Internet treaties and is an important step in addressing commercial-scale piracy in Canada.
Our submission is that passing Bill C-32 into law is a matter of urgency. Canada needs to take legislative action that is already way too long overdue, and while we're recommending some specific changes to address loopholes and practical enforcement issues, we do fully support passing of the bill as soon as possible.
Turning to substantive comments, first regarding the ISP safe harbours provisions, we remain concerned that the notice and notice system proposed in the bill will not be sufficient to effectively address the Internet trade in pirated products. In any event, a notice and notice system requires strong provisions directed against enablers of Internet piracy. The bill's proposed enabling infringement provision only applies if a service is “designed primarily” to enable infringement. With experience, I can say it's often going to be very difficult to prove a service was designed primarily for infringement, even when it would be possible to prove that a service provider is knowingly enabling and encouraging infringement as a primary use of the service.
Accordingly, our submission is that the enabling provision should be amended to catch services “designed or operated primarily” to enable acts of infringement. In addition, the provision should make it clear that the full range of legal remedies, including statutory damages, are available against enablers.
Second, we submit that the provisions providing protection for technological protective measures are crucial to fill a gaping hole in Canada's copyright laws. The prohibition on trafficking circumvention tools or services will permit rights holders and law enforcement to go after entities that are enabling widespread piracy. The nature of circumvention activities is such, however, that the act of enabling circumvention and the act of copyright infringement are normally distinct acts that are performed by different people. Accordingly, limiting the prohibition to circumvention for the purpose of infringement, in our submission, is not feasible as it's going to create a loophole for traffickers that will be exploited.
Further, the wording of the exceptions has to be closely scrutinized to try to ensure there are no unintended loopholes that may be used by persons trafficking in circumvention products and services. For instance, if you have purveyors of circumvention tools or services adapted for allowing the loading and using pirated content onto devices that are technologically protected, the fact that it may allow for the loading of legitimate content should not create a loophole when the economic viability of the tool or the service is solely based on enabling piracy.
Generally, we strongly urge against any watering down of the TPM provisions, as they may easily be rendered practicably unusable.
Third, and last, we're very concerned that the two-tier system for statutory damages will be abused and may create perverse incentives for rights holders and infringers. The new non-commercial tier provides a range between $100 and $5,000 that applies to all infringements ever done by the infringer, and that's going to give an incentive for them to copy as much as they can, because they'll only get one capped damage.
Also, the first rights holder to file an action can benefit from the ability to claim statutory damages. This could provide incentives for the rights holders to sue quickly so they're the first to the gate.
Moreover, many individuals and organizations that facilitate widespread piracy, such as “warez” or release groups, do so to build a reputation on the Internet. They don't do it for dollars. One of our concerns is that the two-tier system will benefit those people who are purposely going out to gain their reputations, and it would limit the liability of those individuals.
We recommend you eliminate the multi-tiered system and instead focus on the factors that courts must consider when determining the amounts of the awards, to ensure that individuals copying pirated content for private use are protected from inappropriate damage awards.
We urgently need to equip rights holders, law enforcement officials, and prosecutors with robust legal tools to shut down those who enable or facilitate piracy. We applaud the significant step the bill represents. We urge the committee to implement the amendments necessary to fully realize the principles of the bill and to rapidly pass and implement it.
I will gladly answer any questions.