Evidence of meeting #35 for Industry, Science and Technology in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was e-mail.
A recording is available from Parliament.
Director, Policy and Legal Affairs, Entertainment Software Associaton of Canada, Canadian Intellectual Property Council
I'll respond, because the Entertainment Software Association of Canada is actually the trade group for the Video Game Association.
We appreciate your support, Mr. Masse.
Director, Policy and Legal Affairs, Entertainment Software Associaton of Canada, Canadian Intellectual Property Council
To your point—and actually, this is the core of our concern on this—what the bill is currently proposing just goes far beyond that. It requires not only that you have to obtain some form of consent, which as you mentioned is not of itself unreasonable, but it actually forces you to describe the function purpose of impact of every single computer program that's being installed during that process and to clearly identify.... To the extent that you actually may find the process of doing the update inconvenient now, can you imagine if you had literally hundreds of pages of updating for every single individual update that's happening and what the impact of that is going to be on the system?
Also, there is the corresponding issue that some of those updates are to identify security flaws that have emerged. Essentially, it would be Sony identifying to the world, “Oh, incidentally, we've identified a security flaw that lets you update the PlayStation network for free, and you can download as many games as you want. We're going to fix that. Do you agree?”
Some consumers may be—
NDP
Brian Masse NDP Windsor West, ON
I don't mind doing it, but I get your point. It can't be so minuscule an adjustment. But at the same time, how do we balance it out? That will be the real challenge—I think we'll hear that from the department.
Director, Policy and Legal Affairs, Entertainment Software Associaton of Canada, Canadian Intellectual Property Council
I agree.
Conservative
Liberal
Siobhan Coady Liberal St. John's South—Mount Pearl, NL
Thank you very much.
Thank you to all the witnesses for being here today and for taking the time to review this piece of legislation and to give us some detailed suggestions on how we can improve it.
I'd like to ask Mr. Copeland a couple of questions, if I may, around enforcement, because you spent most of your presentation talking about that, and we haven't really delved too much into that.
I'm intrigued by your trilateral suggestion. Could you please expand upon that, as to what your suggestion would be? If you look at some of the enforcement, especially for civil liabilities and the offences thereunder, CRTC is involved and the courts are involved. Can you talk a little bit about your view on what I think you called the “trilateral task force” to manage this?
Chair, Canadian Association of Internet Providers
My thinking there is that it's very practical in nature. If we have three agencies trying to enforce the same piece of legislation—albeit with different responsibilities within the legislation—we're bound to have overlap at times. I think one of the overlaps that could occur is that, if I recall correctly, the Privacy Commissioner will have the ability to decline an investigation, which means the complaint would have to be shuffled off somewhere else to be re-initiated if that were the case or if new information came to light that would change the investigation. This hopscotch through the enforcement process would seem to be a little over-the-top. It would be a burden for individuals to work through, not knowing where they should start with a complaint and how it should be followed through. If there was a central cache of expertise that could be drawn upon, it would—
Liberal
Siobhan Coady Liberal St. John's South—Mount Pearl, NL
Instead of trying to simplify what we're trying to do, or put more things in regulations, is there another way around this? Have you considered another way besides the suggestion of the trilateral?
Chair, Canadian Association of Internet Providers
I guess I am purely looking at it from the consumer's standpoint: Where do I start? To whom do I complain? Is it the CRTC? Is it the Privacy Commissioner? Is it the Competition Bureau? There is a forged header, they're trying to sell me bogus drugs, they have sent it en masse, there is no implied consent--where do I start?
To have to play that checkers game to get something started, I think, would be a deterrent to many people.
Liberal
Siobhan Coady Liberal St. John's South—Mount Pearl, NL
Do you want to comment on the private right to action? We have discussed it earlier today.
Chair, Canadian Association of Internet Providers
Certainly, I can see the CBA's concern on that. In other jurisdictions, particularly in the United States where we have seen the private right of action used, it tends to be used when a large telecommunications provider wants to make a splash. They want to make an example of an egregious spammer. They want to seize their mansions, their boats, their cars, and raffle them off to their users for headlines.
I would hope we aren't going to see frivolous suits brought. Certainly, a lack of damages might be a concern, where with a large telecommunications provider it would be easier to identify damages because they have to deal with this stuff coming through their system. You could say each spam message is worth x cents, so you could compile some costs. So I think the cost of damages is important.
Liberal
Siobhan Coady Liberal St. John's South—Mount Pearl, NL
Thank you.
Moving to having consent now--this is in case we haven't had consent and we're in a serious situation--I'd like to question Mr. Misener and Mr. Gray specifically around these consent provisions. There are a number of people who think the consent provisions are too narrow and are out of the context of the international community. If you look, for example, at the New Zealand spam act, probably both implied and express consent are interpreted a little differently. If we consider what has been adopted by PIPEDA and quoted from the spam task force, it defines implied consent much more broadly than this proposed act. The consent is “...where consent may be reasonably inferred from the action or inaction of the individual.”
Do you think the consent provisions in this proposed act are too narrow? I think you have asked for some changes in length of time, but have you reviewed the consent provisions?
Then, Mr. Gray, could you add a comment to that?
Vice-President, Global Public Policy, Amazon.com
Thank you, Madam.
We're quite comfortable with the underlying existing business relationship. Again, this is a case of where a consumer has come and bought a product at a website, like ours or of another commercial seller, so that kind of basis for implied consent we are very comfortable with. It is simply the duration of it. If you're going to have implied consent, it ought not to expire so quickly.
Director, Canadian Intellectual Property Council
Mr. Chair, I'll simply add a brief comment and then Jason can take over.
It is definitely too narrow, as currently drafted, and needs to be addressed.
Director, Policy and Legal Affairs, Entertainment Software Associaton of Canada, Canadian Intellectual Property Council
Essentially, one of the challenges we find with the existing implied consent regime is that it is defined by these narrow notions of the existing business relationship, existing non-business relationship. And as much as having a bright line test, where you clearly know if you're onside or offside, gives us certainty, it doesn't address the myriad of contexts in which consent can be reasonably inferred from the circumstances. Here's an example that was raised at the last meeting: someone's Facebook page. It's reasonable to infer that you would actually expect to receive messages that they're sending out--such as for campaign donations; you don't have express consent to do that, and implied consent, as drafted in the current bill, wouldn't cover that.
Conservative
Mike Wallace Conservative Burlington, ON
Thank you, Mr. Chair.
I want to welcome everyone this afternoon. I appreciate your comments. We're coming down to the end of the review with witnesses and will be getting to the nitty-gritty in the next couple of weeks.
Mr. Copeland, I want to clarify, to make sure. There was a minister's task force on it. You were part of that task force, is that right?
Chair, Canadian Association of Internet Providers
Right. I was one of the 10 members.
Conservative
Mike Wallace Conservative Burlington, ON
I am assuming two things, but let me start with the first question. I was involved with a PIPEDA review and a number of other things. Some legislation has a timeframe to it in terms of an automatic review. Was there discussion at the task force that since this is new legislation, maybe we should put a five-year timeframe for review of this legislation and what its actual effect is? Was that discussed? How would you personally feel about it--obviously not representing the task force--if we added a timeframe to this proposed legislation in terms of an automatic review?
Chair, Canadian Association of Internet Providers
My recollection, and this is going back a number of years now, is that we didn't discuss a review down the road. However, technology changes. It's dynamic in nature, and certainly we can't expect that, for instance, today's definitions of an illegal cyber activity not be changed down the road. I think it would be worthwhile at some point in the future and not too far out--two to five years--to have two years for an interim review and maybe five years for a more sweeping review.
Conservative
Mike Wallace Conservative Burlington, ON
The issues the Canadian Intellectual Property Council brought forward today, or something very similar to those, I assume were discussed at the task force in terms of the scope of the bill. Would that be correct?
