Industry Committee on Sept. 19th, 2018

[Christopher Copeland, Counsel, Canadian Network Operators Consortium Inc.]

It all depends of the scale of the ISP and the number of end-users they have. That can range from a few hundred to multiple thousands and to the tens of thousands and beyond. It's directly proportionate to the number of users they have. The more users they have, the more likely it is that some users may be involved in infringing activities and that drives the volume of notices they might expect.

[David Graham, Liberal, Laurentides—Labelle, QC]

Can you enforce any kind of notice and take down system or filtering without violating that neutrality?

[Christian Tacit]

I don't think so.

That's the concern. Without court supervision there is a serious risk of eroding democratic values of free speech and expression, and freedom of expression. The reason we have court safeguards is that the courts are the ultimate protectors of our Constitution and our democratic values. To do anything other than that isn't necessary. I also want to make the point that the notice and notice regime isn't just this tool that's out there that nobody cares about. We in our practice see follow-up from content owners who, when they see multiple infringements from the IP address, will start court cases to get the information on who the users are and will pursue them. Those people are in Canada and they can be sued for statutory damages and effective injunctions can be levied against them for infringement. There's no reason those remedies aren't available.

The other thing is, although there is a safe harbour for ISPs, they're also subject to the peril that if they are deliberately and repeatedly engaged in those sorts of activities, under subsection 27 (2.3) of the Copyright Act safe harbour doesn't apply. We don't need to go very far and compromise our values to deal with this problem.

[David Graham, Liberal, Laurentides—Labelle, QC]

I have only about five seconds left, and I want to make one very quick request.

You mentioned you're getting notices that have things that are beyond the scope of the statute. Is it possible for you to share with us, at a later date, examples of these letters that are sent to your users that vastly exceed the elements prescribed by statute?

[Christian Tacit]

We could provide some redacted materials.

[David Graham, Liberal, Laurentides—Labelle, QC]

Thank you. I appreciate that.

[The Chair, Liberal, Dan Ruimy]

If you can send them to the clerk, that would be great. Thank you.

Mr. Albas, you have five minutes.

[Dan Albas]

Thank you, Mr. Chair.

I want thank all of our witnesses for being here today. It's a fascinating subject, and I appreciate you all sharing your points of view.

I would like to start first with Mr. Tacit.

In your opening statement, you talked about vertical integration. There are a number of us who are familiar with the term, but specifically, what types of ISPs are you referring to?

[Christian Tacit]

The ones that are the biggest and have the most resources and are championing the FairPlay coalition are Bell, Rogers, Shaw, Vidéotron and so on.

[Dan Albas]

So the ones that have plays in both media creation, distribution, and content—

[Christian Tacit]

That's right, either directly or through affiliates.

[Dan Albas]

Now you said there are a few different options. If such a program were to be put in place, such as FairPlay has suggested, there would be costs. You said that the state could possibly pay for it, which means the Canadian taxpayer or a certain subset.

Again, there's some proportionality, because obviously in some areas ISPs are much smaller and service very niche markets, particularly in rural areas, and the proportionality would certainly impact them more. Is that correct?

[Christian Tacit]

It depends more on how big their scale is and what sort of technology measure is being required of them.

For example, you order an ISP to use deep packet inspection, which is a form of inspecting the headers on packets of traffic that tells you a lot about the type of traffic being carried. If that's used as a method of trying to detect infringing traffic—and we won't talk about the merits of how accurate it is or isn't, but let's assume it is—those DPI boxes can easily cost $100,000 each. For a small ISP, you could literally put an ISP that's comprised of two to four employees out of business by requiring them to do this.

[Dan Albas]

Especially in rural areas, where there's a smaller network—

[Christian Tacit]

Wherever they are.

[Dan Albas]

—or a very expensive network to service.

[Christian Tacit]

Sure.

[Dan Albas]

Then, of course, the other alternative is to have the media companies that are asking for these takedowns to happen to do it, and then it would be all on their customers. Is that correct?

[Christian Tacit]

That's right.

[Dan Albas]

Inevitably, if we go down this path, there will be increased costs to consumers or to Canadian citizens, or some subset of either.

[Christian Tacit]

Somebody should pay other than the person, the innocent party, who's being required to do the job.

[Dan Albas]

Now in regard to some of these automatic tools, my colleague Mr. Lloyd had mentioned that new technology comes across....

I know a lot of younger people, and probably some older people, play video games that have music in the background. They generate their own content to share with other people for different games or whatnot. That kind of music being played in the background could trigger one of those automatic takedowns if that technology was.... Because there are protections for satire, for individual sharing and whatnot.

Those things could be put at risk as well, could they not?

[Christian Tacit]

Potentially, yes, because the packet inspection, and making decisions on blocking based on that, doesn't provide you with any information about the context in which those packets are being transmitted. You're quite right that some of them may be authorized and some of them may not be.

[Dan Albas]

You mentioned earlier that if we were to put in place that kind of system, ultimately ISPs would have to look at things in terms of their economic interest rather than other values.

Can you give an example where an ISP might have to make that decision? Again, we're asking to basically regulate the conduct of others. What I may suspect might be exploitive to some, other people would say, “No, that's generated content. That's their content.”

Could you maybe give us a few examples of how those two compare?

[Christian Tacit]

If in the carriage of content, the issue has come up....

By the way, there are already provisions now that, again, don't allow ISPs and other Internet service ecosystem participants to take advantage of safe harbour if there's a court order that says something is infringing and they're ignoring it. Then it's pretty clear that if they are participating, they shouldn't be.

However, in a situation where there's no legal determination to say to somebody, “I think they're knowingly doing this and now I'm going to block their traffic”, that's putting a common carrier in the role of a judge of what should be carried down its pipes. That's why I'm saying that's a very.... If I were an ISP, I would tend to be conservative, and if the penalty is very large—let's say I'm opening myself up to very high statutory damages—I may be more tempted to take the risk of having the party sue me for getting it wrong, because it's a smaller amount of damages than to have to pay the large statutory damages, particularly for recurring offences, where every day is considered a new offence or whatever. I may now start meddling in that traffic because I'm worried about my liability.

We don't want common carriers to be in that situation.