That's great. Thank you.
Just for a change, I'll make my presentation in English, but I'm happy to respond to any questions in French or in English.
Good afternoon, and thank you on behalf of Telus Communications for the opportunity to appear before the committee.
My name is Ann Mainville-Neeson, and I'm vice-president of broadcasting policy and regulatory affairs at Telus. With me is Antoine Malek, senior regulatory legal counsel at Telus and an intellectual property lawyer.
Telus is a national communications company. Whether it's connecting Canadians through our wireless and wireline businesses or leveraging the power of digital technology to enhance the delivery of health care services, we are committed to connecting with purpose, positioning Canada for success in the digital economy and enhancing economic, educational and health outcomes for all.
We provide a wide range of products and services, including wireline and wireless telephony, broadband Internet access, health services, home automation and security, and also IPTV-based television distribution. In light of earlier testimony that you received from other TV service operators, it is relevant to note that unlike our main competitors, Telus is not vertically integrated, meaning that we do not own any commercial programming services. We are purely an aggregator and distributor of the best content there is to offer.
In striving to be an aggregator of choice and the place where Canadians go to access content, we listen to our customers and we are constantly looking for better ways to meet and anticipate their needs and desires. We know that innovation is essential to competing in the digital environment, where consumers have more choice than ever before. We believe that innovation is essential in keeping the Canadian broadcasting system, which is a major source of income for Canadian artists, healthy and competitive. Accordingly, our remarks today are focused on amendments that would foster innovation by promoting efficiency and by increasing the resiliency of the act in the face of rapid change.
I want to start with one of the areas where amendments enacted in 2012 fell a little short on the innovation front. In 2012, Parliament adopted exceptions that would provide users with the right to record a program for later viewing. This recording can be made on their own device or on a network storage space. When the recording is made in the cloud, it is referred to as a network personal video recorder—NPVR—or sometimes cloud PVR.
While the 2012 amendments were a step in the right direction, the statutory language contemplates a discrete recording for each user. As a result, an NPVR service provider like ourselves might need to store hundreds of thousands—even millions—of copies of the same recording, one for each user who initiates a recording. That kind of excessive duplication is unnecessarily inefficient and costly for the network operator, and creates no value for the rights holder.
Innovation dictates leveraging the benefits of network efficiency by sharing a single recording of a program among all the users who initiated a time-shifted recording of that particular program. Telus recommends that the act be amended to allow this to happen without any additional liability being incurred by the network operator.
Looking to the future and other ways that the act can more broadly foster innovation and be adaptable to technological change, Telus recommends that the risks associated with innovation in the face of statutory ambiguity be distributed more evenly between rights holders and innovators. Specifically, we propose some changes to the statutory damages regime in the act.
Under the current rules, the potential liability posed by statutory damages can be completely detached from either the actual harms suffered by rights holders or any profits derived from an infringement. We recommend that the courts be empowered in all cases to adjust statutory damage awards to align them with the circumstances of the infringement. The courts are already empowered to do this, but in limited circumstances only. Evidence of bad faith should be required to justify statutory damages if they're disproportionate to the infringement. By ensuring that the punitive aspect of these awards is applied only in cases where it is appropriate and desirable to do so, the Copyright Act would no longer be discouraging innovation.
I would now like to turn to the notice and notice regime.
First, Telus agrees with other ISPs who have presented before you that notice and notice is a reasonable policy approach to copyright infringement because it balances the interests of rights holders and users. We also agree with proposals to mandate the form and the content of notices, especially to require them to be machine-readable so that the processing can be as close to fully automated as possible.
Telus also agrees with Minister Bains's earlier announcement that notices should not contain extraneous content, such as settlement demands, nor should they contain advertising on where to find legal content, as some have suggested. That is not the purpose of notice and notice.
Telus also echoes TekSavvy's proposal that ISPs be permitted to charge a reasonable fee for forwarding notices. This is not only a matter of fairness to ISPs, which are innocent third parties in copyright disputes; it would also address the potential for misuse of the regime. While the government has announced an intention to take steps to address misuse by prohibiting settlement demands, this doesn't address other forms of misuse, such as fraudulent notices or notices that include phishing links, which pose a security concern for consumers. Adding an economic cost to accessing the regime would go a long way towards minimizing its abuse.
Finally, Telus also proposes that the separate statutory damages provisions under notice and notice be amended to be harmonized with our proposals for amendments to the broader statutory damages regime under the act. Specifically, Telus proposes that under notice and notice, the courts should be given the discretion to lower a minimum award to ensure that it is proportional to any actual harm to rights holders, and that evidence of bad faith on the part of the non-compliant ISP be required to justify a disproportionate and punitive level of damages. Such an amendment would go a long way to helping ISPs deal with the significant and increasing costs that they are required to incur to help rights holders enforce their rights.
In closing, we thank the committee for its work in reviewing this important piece of legislation. Copyright is one of the key legal regimes that governs the digital markets of the modern economy, and we support its intent. In order to maximize the potential for Canada's digital economy, we believe the legislative framework must balance support for creators with the public interest in supporting innovation that leads to new technology and business possibilities for the benefit of all Canadians. Thank you.