Information & Ethics Committee on Feb. 13th, 2018

[The Chair, Conservative, Bob Zimmer]

Next up, for seven minutes, is Mr. Erskine-Smith.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much. It's probably that 0.00001% of cases that happened in 2005 with Telus.

It's interesting that we're talking about net neutrality, but we haven't talked about the FairPlay proposal, and nobody has raised it.

I have a constituent email from Joseph Trovato. He writes:

I am writing to voice concern over the Bell coalition's website blocking proposal to the CRTC.

Censorship of the Internet is not something that I can support.

...Bell, as a content producer and service provider, should not have the power to limit access to any content.

I'll direct this to Bell and to Rogers. Can you explain how the FairPlay proposal is consistent with net neutrality?

[Rob Malcolmson]

With regard to the FairPlay proposal, I know you and others have referred to it as the “Bell proposal”, but it's not. That doesn't reflect the broad constituency of members of the various participants in the cultural community that have participated actively: actors' unions, guilds, production companies, theatre festivals, and broadcasters. It really is quite a broad coalition of participants, and I think that reflects the understanding among the industry of just how serious the piracy problem is in Canada and what a threat it is to the cultural industries that employ thousands of Canadians.

In terms of the proposal itself, it's not a net neutrality issue. As Minister Bains has said, net neutrality is about the free flow of legal content over networks. The FairPlay proposal is addressing something that I think everyone agrees is illegal—that is, content theft and copyright infringement.

Given the difficulties of enforcing against copyright pirates, especially those who reside offshore, the FairPlay proposal asks the CRTC to consider whether or not those pirate sources—which are blatant, egregious, commercial sources of piracy—should be blocked. Why is that the remedy? Quite honestly, it's the most practical and expedient remedy: to block these websites as they come in.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I'll put a similar question to Ms. Dinsmore.

Mr. Geist has written that

...the government and the CRTC should not hesitate to firmly reject the website blocking plan as a disproportionate, unconstitutional policy sorely lacking in due process that is inconsistent with the current communications law framework.

Perhaps you can explain to us why the current law is insufficient.

[Pam Dinsmore]

I think there are, happily, voices being raised that are counter to Professor Geist's. There are lots of arguments on the other side, as you can read in other blogs by people such as Hugh Stephens and Barry Sookman.

That said, there is an enormous amount of due process built into the application. The organization that would be set up is to be set up thus because it is an expedient way, with experts, to deal with the triage of the applications that would come in. There would be transparency and there would be a public proceeding in that process, but ultimately the Internet piracy review agency would make a recommendation to the CRTC, and the CRTC itself would make the decision as to whether a website should be put on the blocked list and therefore be required to be blocked by the ISPs.

The alleged pirate would have the full panoply of remedies available to him, if he or she disagreed with the determination of the commission: they could ask for a “review and vary” or they could appeal the decision to the Federal Court of Appeal, just as in any other case that comes before the CRTC.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

In answer to Mr. Masse's questions, you indicated that the status quo is that there's a court order and a website is taken down. Let me ask, what are the deficiencies in the current takedown process with court actions?

[Pam Dinsmore]

Do you mean the notice and notice regime under the Copyright Act?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Right. Why is that particular process so deficient that we need a new regime?

[Pam Dinsmore]

That process is not deficient when we're talking about downloads. Last year, as an example, Rogers delivered 2,400,000 notices to end users. That process is working very well when we're talking about people who download copyrighted content.

What it doesn't work for is streaming, and streaming has arisen as the most-used way for consumers to access pirated content since the Copyright Act was brought in five years ago. It's the detection of streaming that doesn't work in a notice and notice context, and therefore it is not a useful method.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Do you have a list of websites you can share with this committee that you think should be blocked?

[Pam Dinsmore]

I don't have a list on hand right now.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Well, if you could, please share a list with the committee after the fact.

I'd also be interested in where it stops. Do we block VPNs? Do we block torrents? At what point do we stop blocking particular content or services that are related to illegal activity a lot of the time?

[Pam Dinsmore]

I think the issue is who “we” is. The issue here is—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

It's governments.

[Pam Dinsmore]

The issue here is of an independent agency of the government making a determination as to whether or not a given site is blatantly and egregiously engaging in dissemination of pirated content.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

We had CRTC before us, and Mr. Geist before us previously. I put the same question to the CRTC about enshrining the current principles. I think everyone—CRTC included, and Mr. Geist and you yourselves—has said that the current regime is important, that it works.

We're not asking the current regime to change with respect to subsection 27(2) or section 36, but does it make sense to enshrine the principle of net neutrality in law, or would that be superfluous?

[Pam Dinsmore]

We don't see a need to do that. We think it is somewhat superfluous, because the beauty in the existing regime is that it allows for the commission to look at situations on a case-by-case basis as technology evolves and determine whether or not they are in violation of the commission's net neutrality principles.

With 5G, the upcoming network slicing requirements are going to be front and centre, and there one would argue that, as Ted said, one has to allocate a lower latency to medical examples, and maybe less data if you're merely looking at dealing with parking meters. Someone will probably say that it is a violation of net neutrality, but in fact it won't be, because there's no discrimination; it's just that your network in 5G is used differently for different purposes.

That is a very good example of why we need to have a very flexible regime going forward. It's so that we can deal with all of these new technologies that are coming down the pipe.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Erskine-Smith.

Next up, for five minutes, is Monsieur Gourde.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Mr. Chair.

I would like to thank the witnesses for being with us this morning.

I have a fairly general question that is for all the witnesses. We have heard a great deal about Net neutrality and the Internet market as well as external competition. I wonder if that competition can be reconciled with freedom of the markets, in the interest of consumers. I am concerned about one thing for the future. Companies, especially American companies, that are larger than Canadian ones, could buy you up within five or ten years, which would wipe out our industry icons.

[Dennis Béland]

I beg your pardon, I did not hear the question.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Today, we are talking about Net neutrality. We have Canadian industry icons: Rogers, Bell and others, but I am concerned for the future, because we have a free market with our American neighbours and even with the whole world. Is there a risk that our Canadian companies could disappear in a market that is less restricted for consumers?

[Dennis Béland]

Are you talking about our service providers that are Canadian icons?

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Yes.

[Dennis Béland]

Well there are some basic protections in place against the disappearance of Canadian service providers, including the fact that the Canadian spectrum is issued by the Canadian government.

By the way, I would like to briefly reply to the comments by my friend from TELUS.