We know there has also been much comment about the addition of education to the fair dealing exemption. We share the widely held concern that its ambit is too wide if left undefined and would likely lead to considerable and costly litigation. Placing some definitional parameters around the provision is necessary and will provide much needed clarity for all concerned.
Third, we think that Bill C-32's inclusion of an enabling infringement section constitutes a very big step in shutting down the digital black market in Canada. Like other stakeholders, we would propose to slightly amend the section so that it would apply to services that are designed or operated primarily to enable infringement or that induce infringement. We would also recommend that the hosting and caching exceptions in Bill C-32 should explicitly not apply in circumstances where the service provider is enabling infringement.
As currently drafted, the hosting and caching provisions could inadvertently end up shielding massive commercial enablers, which we know is not the intent of the bill.
Fourth, while we fully appreciate the rationale for the user-generated content exception, our members are deeply concerned that it sets the creative bar way too low for what would constitute such content. What none of us want is a provision that might, for example, inadvertently permit a user to upload full seasons of Degrassi or Corner Gas to the Internet. In that scenario, the only thing that's being generated is lost revenue to the people who make Degrassi.
At a minimum, the exception should only allow an individual to create original, transformative, user-generated content for the person's personal, non-commercial use if all of the permitted acts can be considered fair dealings under the existing copyright law test.
Fifth, we would urge the committee to consider whether a notice and notice regime is really a sufficient mechanism for deterring widespread online copyright infringement. The simple fact of the matter is that merely sending letters to serial infringers is unlikely to get them to see the error of their ways. We therefore recommend that a provision be added to the bill that would allow an ISP to benefit from the bill's safe harbour provisions only if the ISP has adopted and implemented a policy to prevent use of its services by repeat infringers.
John.