The CRTC, Bell, and a Brief History of Piracy in Canada

Web PirateRecent headlines about the CRTC, and a Bell-led consortium against piracy, are making waves on the Web right now. What’s the CRTC role in combating Internet piracy? What is Bell and other internet service providers’ place in the discussion? Margo Langford, who is part of our Law 206/706 course, Intellectual Property of Law, is here to help. We talk about the CRTC, the Bell consortium, and piracy law, but also some of the history of copyright on the Internet, why Napster might have survived in Canada, international legislation, and much more. This could be its own podcast!

If you’re interested in IP issues, check out Law 206/706, Intellectual Property Law, at takelaw.ca. This course is a must if you’re interested in patents, trademark or copyright — whether you’re writing a novel or crunching code for your new app, it’s essential to understanding your rights in Canada.

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

00:00 Matt: What I’ve seen and I know we’re gonna go somewhere different with this, but what I’ve seen is this… The CRTC decision to deny Bell and a number of other organizations who’s kind of formed a group kind of this sort of advanced power over privacy, and that’s the headline that I saw flying past me. So I thought it might be useful to start with what is the CRTC’s role in copyright enforcement in Canada?

00:26 Margo: Yeah. When I read the decision from the CRTC I actually understood that the collective of broadcasters and web owners were actually trying to get a website up, or technology up, to block infringing content. So not so much privacy as it was illegal use of other people’s content, what we call piracy in the copyright world. So what they were trying to do was get CRTC really to step outside of its traditional mandate, which is a regulator of content and of rates for the broadcast industry and the telecom industry, and get it to step into the copyright world. We have a copyright board and it also doesn’t deal with infringement, it deals with tariffs for the use of other people’s content in a legal context.

01:20 Margo: So what we’ve had in Canada forever and in most countries in the world are both civil and criminal private rights of action where the rights owners, who have their content infringed, collectively or individually go to court. So they either sue or they try and get the police involved. In our copyright law in Canada, we have both. You can take a criminal action but it’s very difficult. Having been a pirate buster myself I can tell you, extremely difficult to get the police involved. And they only do it really, if there is a criminal who has a rap sheet already and they’re using it as a way to bring that person into the justice system. So, we generally have formed collectives in Canada and we go back to the early 1920s with the composers forming the first collective, which was called SOCAN, and since then just about every kind of rights group has formed a… Content rights group has formed a collective. So we’ve got them for… We got CanCopy for book publishers and we have, well, just a myriad of them and I think in the music industry alone because we have… Quebec has separate ones, we have about six music rights collectives that go out there and look for pirated material and take action.

02:40 Matt: Right. And I’ve seen, if you, as a for instance, if you go to a bar and you’re being served and you look behind the bar tender you can often see like the SOCAN License to Play sticker somewhere saying that they’ve worked through this collective and they’re paying a fee for a tariff and that gives them the right to play copyrighted music in their establishment.

03:00 Margo: Right, because it’s a commercial establishment, which is different than playing it at home.

03:04 Matt: So we’ve got this kind of tiered… I don’t know if tiered is the right word, but there’s a system under which kind of there’s regular folk who access this music through the radio or they hear it at the bar, they hear it in a store, they hear it in the mall. Then there are these collectives that basically allow people to pay money for tariffs that give them the right to play all this music that we’re hearing in these various places.

03:28 Margo: Right, or they can incorporate it into a film or to make multiple copies on campus for publications they wanna use, etcetera. So yeah, depending on what the content is, somebody somewhere, if you’re using content or seeing content in public, chances are somebody has a licence and somebody’s paying.

03:48 Matt: Right. And then there’s a fuzzy part, that I’ll get to in a second, and then there’s the CRTC, which is I feel like it is more of kind of a regulator of sort of the infrastructure of it all.

04:00 Margo: Correct.

04:01 Matt: So they give a radio station a license to be a radio station, but they are not responsible for the licensing of the content of the radio station.

04:10 Margo: No, except that in Canada we decided that it was really important to have Canadian content. So they regulate, they put some rules around those licenses and so they have a certain minimum amount of Canadian content that has to be produced, for example, but they don’t actually regulate things like infringement of content.

04:28 Matt: And the fuzzy bit in the middle that I don’t quite understand is sort of Bell, as they seem to be kind of the public face of this group, they are now getting more involved in terms of saying we want to set up and do things to block infringers.

04:43 Margo: Right. And so, interestingly, there was a collective of the web service providers back in the late 19… Like about, I would say, 1995 through to sometime, I think, the group disbanded somewhere in the 2000s. It was called the Canadian Association of Internet Providers and I was actually part of that and was actually chair for a while. And we formed this collective exactly for reasons like this, which was that collectively, we were all experiencing challenges with content, some of it very illegal and criminal and nasty, and so we wanted a whole bunch of rules about first of all what ISPs would do, and then what the content owner could do. We came up with a kind of what we called “notice and notice.” So in the United States they were doing something already, being that much ahead of us in the internet called “notice and take-down.” So basically I would give an ISP notice that their… My music is being infringed on that particular website and basically they took me at my word in the United States, and they took it down and that caused them, of course, some problems as well because something that’s… Might not actually be true. And what kind of proof was required to say it was mine and all of those kinds of issues. So we decided… And there was also the issue of privacy and maybe this is where the confusion comes in.

06:17 Margo: If I wanna deal with a website I have to know who owns that website. And I can’t deal with them directly, so I have to go through my ISP, but ISPs had locked lips about who their customers were. And so they didn’t want to disclose to any old third party who would show up saying, “I have a right and this guy is infringing it.” Because that would be sharing their customer information. So they had… We came up with something called notice and notice, which was basically, “You tell the ISP you got a problem and the ISP will tell the owner of the website.” And if they think that they have a right to be using that then they come back with their information on how they got the right to use that piece of content and why they’re not gonna take it down.

07:07 Margo: Notice and notice worked really well in Canada, we didn’t have then any of the problems about disclosing customer information. People generally took them down because they didn’t know, there was so much content in the internet. It’s very hard for an ISP or a website owner, even. Some website owners are liable for it because they’ve put the content up, but for an ISP to know whether or not content on somebody’s website is legal or not would be impossible. So that worked for a while as a voluntary method, and then in 2012 when the Copyright Act was amended, that went into actual formal law. So that’s actually what Bell and Rogers are trying to do in the… The system they were trying to set up through the CRTC was actually a notice and notice system, which basically says, “Internet providers have the right to remove or block access to content upon receiving notice.” So it was pretty straightforward, they just didn’t wanna have to do it themselves and they didn’t have a collective to do it, and they thought the CRTC should or should at least allow them to create a technology means of doing it.

08:16 Margo: And then they basically said, “No. I guess what you got going now is good enough, it’s in law, you can form a collective to do it if you want, and do it yourselves the way other rights groups have done it. But we’re not gonna start taking on or allowing you to have some sort of hyper rights to deal with infringement.”

08:40 Matt: So the CRTC’s take was kind of, “This is out of scope for us to say yes or no to?”

08:44 Margo: Yeah, I think that’s really what it comes down to. They’ve never been in the infringement world and they’re not about to step into it.

08:51 Matt: Right. So as someone who’s been involved in this in the past, I guess my natural curiosity… My curious question is, why do they care? If you build a road, you’re kind of agnostic as to whether the traffic on that road is criminal or not criminal, so if you own the pipe, why do they feel obliged to be involved in what traffic is going through the pipe?

09:17 Margo: I’m not sure why they want to be. Maybe they just feel that they lack the tools to do it effectively. And ’cause the last thing on earth we certainly wanted as a collective of ISPs, was to be in any way liable. And there was a case, it went all the way to the Supreme Court of Canada, basically, about common carrier liability. Whether or not if you were just a pipe, whether you would be liable for the content, and it ruled in favour of the ISPs. It says, “No. If you’re not actually aggregating the content yourself then you are just the pipe, then you’re not liable.” The second… There’s a lot of hybrid rights, so a lot of ISPs are also website creators and owners and builders and whatever. So the second that you move into the content creation side, well, then you’re wearing a different hat and then you could be. So I think also all of these companies are such hybrids now. It may be that from their content side, in their content creation side, they wanna protect their own content and they wanna block illegal content.

10:18 Matt: So there’s a certain amount of, they may in fact own IP that they want to protect and that they’re trying to facilitate the means of protection through this method they have devised.

10:31 Margo: But of course the world is completely international, in terms of the internet and where most of the infringement is taking place.

10:37 Matt: I was gonna say, we’ve been talking about this in a Canadian context, but you’re right, it’s an international issue. My internet access is not Canadian, my internet access is global. So how is this affected by international treaties and international agreements?

10:51 Margo: It’s terribly difficult [chuckle] because the copyright laws, although very similar because of treaties, in which basically are that they’re kind of normative setting guidelines for countries to form their laws around some agreed upon principles, but there’s wrinkles in everyone. So the Canadian copyright law’s slightly different than the US in a number of ways, and then the treaties are not always ratified by all the countries in the world. So not everybody is playing by the same rules, but generally over the last 100 years it’s been fairly well harmonized. Interestingly, we’ve just formed another treaty, and that’s with the US and Mexico. And there were some issues around copyright that had to be harmonized. One of them was the length of copyright.

11:41 Matt: Yeah, things are longer now.

11:42 Margo: Yeah. We expanded to 70 years, it was 50 in Canada, life of the author plus 70 years now, which gives the owners more protection. But the other one was actually the notice and notice story. We do not have the same regime, as I was mentioning, as the US, they have notice and take-down still in their law. And we got an exemption, and we are allowed to continue with our notice and notice, which is actually fantastic because it’s really working. I don’t know if it’s working in the States, I really can’t speak. But I’ve been in-house counsel in an ISP and I’ve been involved right in the front end of getting a notice and what we do with it, and I have been involved with a lot of content owners trying to protect their rights. And as far as I’m concerned, we have a pretty good regime. The problem is that when the infringement is taking place offshore, you really have very few tools.

12:41 Matt: I think there’s a pervasive understanding that things are different, nation to nation, and this idea that there are different rules in different places, so if you have got something that originated in this place, different rules apply. Copyright happens in the country that things start from, right?

12:58 Margo: Where the creator, yeah, has made whatever it is, what piece of content they’ve created is the origin of the copyright. But the interesting thing about the internet, it brought on, I think, I would call the era of technological measures to actually address infringement. We really can’t do it with laws super inefficient to try and sue somebody. So what’s really happened is people try to lock down their content with tools, so you can’t get access to content that’s… People probably are most familiar with it with Netflix, because you can’t get content that’s not licensed for Canada on Canadian Netflix. It’s just the way the rules work and technology permits that to happen. Napster being one of the more fascinating stories about the genesis of these technology tools, and the difference between Canada and US copyright law. Because if Napster had actually been in Canada, they wouldn’t have been guilty of anything.

14:02 Matt: Really?

14:02 Margo: Yes, because we have something in the United States called contributory infringement. So the fact that it was a website that allowed people to file share in the United States was contributing to the infringement and therefore they were liable. But if they’d been in Canada, and they’d set up their service on a Canadian server and then a Canadian company, we don’t have contributory infringement and they would have just been that common carrier. They put the technology there and they allowed people to file share and they weren’t actually doing the copying. That’s been an interesting thing to watch as well.

14:41 Matt: I think we could talk for days about this. I think one of the things I kind of understand about this is it matters where the data resides. So if I have a website, I’m sitting here in my office in Canada, I make my website in Canada but it’s hosted by Squarespace, and the actual server’s in LA, so that’s now a US law thing around the data because that’s where the server is?

15:06 Margo: Still probably a little bit unsettled law.

15:09 Matt: Okay.

15:10 Margo: Because it’s really hard to say. Sometimes it’s where it’s been uploaded from, and this goes into satellite law, that was the first upload and download copyright cases. I don’t think we have enough body of law yet about whether the law of the server applies or not, there’s cases on both sides of it.

15:32 Matt: Right. Anyway… Again, it’s fascinating, pads off in all directions, but back to the core idea of, there was a consortium that wanted to implement new anti-piracy measures and the CRTC said no. Is there anything we haven’t covered there that we should unpack a little bit?

15:50 Margo: Well, I’m just gonna circle back and say the thing about Napster is, it was created in a vacuum before all of the music companies could get together and create their own aggregate site. And so there was something called The Madison Project, IBM was actually… Had all of the music companies on board into this project, and they were trying to come up with their own Napster before Napster appeared on the scene. And they had challenges trying to get those music pieces licensed from the composers, because they were individually licensed in all different countries and people weren’t willing to give up their royalties. And so by the time they got all the legal stuff worked out, they lost the window of opportunity to go to the public with an offering. You saw a little better job when it came to iTunes, when they finally got some act together, but that’s such a small part of what music is actually being consumed on the internet. I think, I don’t know, I’ve heard somewhere between 1% and 10% of the music’s actually paid for on the internet. So we now have a whole generation of people who believe that it’s okay to infringe anyone’s content, that content is free. And I think we have some major challenges for creators as a result.

17:07 Matt: Right. Sorry, when you’re saying 1% to 10% is actually paid for, does that 1% to 10% also include streaming, like Spotify, Google Play?

17:14 Margo: Mm-hmm, mm-hmm.

17:16 Matt: That’s… Oh, wow, that is very different than I thought.

17:18 Margo: Yeah, yeah. The illegal is far eclipsed in the decades that ensued since Napster. It’s just grown as opposed to shrunk. And so part of that is there’s been the resistance, I think, to use the technology tools to stop people from actually getting access to content. So in part that is because people got so used to being able to get it, so now it’s viewed as, “Well, we’ll release some of it for free because this will build a fan base,” or whatever. But it is… I have represented many musicians in the interim, and it’s very hard. Your income is extremely dispersed now. You might make a few bucks on each of the websites that you put your songs on, but you’re not making the kinds of money you used to get with mass sales of records.

18:08 Matt: And so I guess the last question for me would be, Bell et al have put together a consortium and said, “This is something we want to do.” And the CRTC has said, “Not really our bailiwick to say yes or no to this so we’re not going to say, ‘Yes, do it.'” But they’re clearly not gonna give up. So where do you sort of go from here? Where would they take this?

18:30 Margo: I do think that they can just do it.

18:33 Matt: Okay.

[chuckle]

18:34 Margo: As Nike would say.

18:35 Matt: Right.

[laughter]

18:36 Margo: That I think they know they… They did have a mechanism before as a collective to take collective action because obviously one company doing it on its own is, again, not really the answer, but they could create, either with the group they have now or expand their collective and do it themselves.

19:00 Matt: You’ve been very generous with your time, so I don’t wanna get into another whole thing if this is another whole thing, but is this… Does net neutrality plug into this argument at this point or is that a sort of a different ball of wax?

19:12 Margo: I think it’s a very different ball of wax.

19:13 Matt: Okay.

19:14 Margo: That’s really about access to the internet.

19:16 Matt: Right.

19:16 Margo: Well, I guess it get does play in in that people are talking about walled gardens, of creating, again, the technology’s limited access for content. I don’t think we’ve got enough to… I don’t think we’ve figured any of this out well enough yet.

19:34 Matt: Right.

19:35 Margo: [chuckle] I just think it’s sometimes happening much faster than all the existing mechanisms that are in place can react to it.

19:43 Matt: Well, we may have to check in again at some point soon about this or start a spin-off podcast, but for now, thank you very much, Margo.

19:49 Margo: It was a pleasure to be here, Matt.