Good morning.
My name is Jessica Zagar. I am a lawyer at Cassels Brock & Blackwell in Toronto. I am a corporate and commercial litigator, but I focus my practice on copyright matters.
I act for a wide variety of clients, including rights holders, copyright collectives and users of copyright-protected material. The views I express here today, though, are my own.
My submissions focus on site-blocking injunctions and de-indexing orders; and specifically amending the Copyright Act to authorize a court to grant one of these orders against an Internet intermediary, with worldwide effect and on a no-fault basis. This amendment would be an important step towards ensuring fair compensation to artists for uses of their works. Online piracy runs rampant, siphoning compensation out of their hands. Yet, artists do not have effective tools to enforce their rights on the Internet.
I understand that one of the arguments against amending the Copyright Act to specifically provide for these orders is that injunctive relief is already available through common law. As a litigator, I have participated in many litigation proceedings, including injunction proceedings. I have witnessed first-hand the challenges associated with obtaining these orders, including the significant time, cost and uncertainty associated with securing and enforcing them. I would like to share with the committee my observations about the actual steps required to seek and obtain these types of orders, because I think it will illustrate why they are not a particularly effective remedy for artists.
By way of example, an artist may discover that his music has been posted online without permission or compensation. The artist wants the content removed, but ultimately what the artist really wants is for the harm to stop. The artist wants the traffic to go to legitimate sources, not the infringing source. The artist likely cannot do that without a court order. The Copyright Act does not expressly permit site-blocking or de-indexing orders. As a result, the artist needs to seek injunctive relief through ordinary means. That means starting a claim in the courts against the infringer or the intermediary. Usually it will be the infringer, but both approaches pose significant challenges.
It is not easy to start an action and obtain relief against an infringer. They are often, not surprisingly, difficult to find. They hide their identity, location and address. Frequently they are not located in Canada. This creates complications for service of court materials and for enforcing any relief that might be granted against them. While an intermediary might be easier to find, their actions may not rise to a level of activity recognized under the Copyright Act. In their mere conduit roles, they may be, by extension, enabling infringement through their services, but that, in and of itself, is not an actionable cause of action. To prove infringement, the artist would need to show, for example, that the intermediary provides a service primarily for the purpose of enabling infringement and that an actual infringement has occurred.
The artist will likely start the claim against the infringer, and the artist will likely need to seek an interlocutory injunction to stop some or all of the harm pending trial. Depending on the nature of the relief sought, the artist must show that there is a serious issue to be tried or a strong prima facie case, that there will be irreparable harm if the relief is not granted, and that the balance of convenience favours the artist. This is not an easy test to meet. Interlocutory injunctive relief, by its very nature, is not something that courts are readily willing to dispense; after all, they are dispositions before a full hearing on the matter. These motions are expensive and risky.
While the proceeding is moving through the process, a defendant may at any point disappear. In Equustek, the defendants changed their business operations after the lawsuit started. They changed where they operated from. They started offering their product for sale through other websites and filled those orders from unknown locations. Those issues need to be dealt with to the extent possible to minimize the harm to the artist as the case proceeds.
Hopefully, the artist secures an interlocutory injunction. Also, at the end of the process, the artist hopefully secures a damages award and an order requiring the infringer to take down the infringing content. But it rarely stops there.
An award of damages is only as good as your ability to enforce it. Furthermore, an order for the infringer to take down the content nevertheless requires the infringer to comply. If the infringer does not comply, the artist, having gone to all of this time, effort and expense, either has no relief or has to seek more relief in the form of contempt proceedings. All of this comes at additional time and expense to the artist, without any certainty or assurance that the infringer will ultimately comply.
Nevertheless, with an order in hand, the artist may decide to approach an Internet intermediary and seek their voluntary assistance. The intermediary might or might not be willing to assist.
However, new offending sites may appear overnight, and it can become a whack-a-mole exercise. The infringer may simply move the objectionable content to other pages of their website, or they may create new websites from new locations altogether.
It is unlikely that the Internet intermediary will voluntarily take all of the steps needed to actually have the infringing content removed or effectively blocked or de-indexed. Often it needs to be compelled by the court order, because the only effective remedy is the more large-scale de-indexing or blocking order on a worldwide basis. The artist then needs to seek relief against the non-party intermediary to obtain that relief. As became evident in Equustek, this can be no easy feat. If the intermediary opposes the relief sought, it may raise any number of arguments. It may attack the court on jurisdictional grounds or form. There is no guarantee that the court will rule in the artist's favour—far from it—because the test for the relief, as I've just discussed, has a very high threshold. An order may be appealed. ln Equustek, it was appealed all the way to the Supreme Court of Canada, but it did not stop there. Google took the order to California and the matter ended up back in the British Columbia courts to deal with the U.S. ruling that the Canadian order was unenforceable.
Litigation presents many twists and turns, and no two cases are exactly the same. I hope I have been able to demonstrate that it is not easy for artists to enforce their rights in the existing regime. The artists face many time-consuming, expensive and uncertain hoops and hurdles before they are in a position to stop the harm.
The proposal to amend the Copyright Act is about efficiencies and giving rights holders a tool to enforce their rights—a leg-up to stop the harm, with fewer hoops. It will not eliminate all of the hoops. It will not make these orders easy to obtain or result in wide-scale, unhindered censorship on the Internet. lt will still take time, money and due process to secure them. However, it will eliminate some of the steps that artists need to take today, and it will help them get an effective result faster and at less expense.
ln closing, I will note that the proposal is not about blame or fault; it is quite the opposite. The proposal is about recognizing that Internet intermediaries, such as ISPs, hosting providers and search engines, are best placed to prevent or limit large-scale online copyright infringement. And it is about recognizing that rights holders need meaningful, effective tools to enforce their rights and ultimately receive fair remuneration for uses of their works.
Thank you. Those are my submissions.