Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

��

The Federal Court of Appeal unanimously Canada’s first extensive website-blocking order on May 26, 2021. While framed as a decision that protects Canadians from copyright piracy, the judgement raises serious concerns regarding the Charter’s s. 2(b) guarantee of freedom of expression.

In November 2019, the TekSavvy and other major Canadian Internet service providers (ISPs) to block access to GoldTV’s unauthorized streaming websites following a request from telecommunication giants Bell Media, Rogers Media, and Groupe TVA. The broadcasters claimed that GoldTV infringed their copyright and asked that ISPs be ordered to block it. Since the , the order effectively impedes access to GoldTV services. TekSavvy appealed the decision, citing institutional legitimacy, freedom of expression, and net neutrality concerns.

Justice George R. Locke, writing for the Federal Court of Appeal, dismissed TekSavvy’s appeal with costs. In spite of TekSavvy’s arguments, he found that the Federal Court maintains the power to grant a site-blocking order. He also found it “not necessary” to decide whether this interlocutory injunction engages the Charter.

As advocated by the British Columbia Civil Liberties Association, “” Specifically, the affirmed order potentially violates the s. 2(b) Charter rights of the ISPs required to block certain websites and their customers, the Canadian public, by unduly restricting their access to sites containing possibly legitimate content.

The Federal Court of Appeal ruled that ISPs do not receive protection under s. 2(b). Since ISPs act as common carriers, providing their customers with access to websites regardless of site content, they cannot be considered to engage in any expressive activities warranting Charter protection.

But while the Court acknowledged that the website-blocking order may impair TekSavvy’s customers’ expressive interests, it ultimately agreed with the lower court that an extensive Charter rights analysis was not warranted given the Supreme Court of Canada’s decision in Here, Google appealed an order requiring it to globally de-index the websites of a company which, in breach of several court orders, unlawfully sells the intellectual property of another company. The majority engaged in a brief discussion of freedom of expression, noting that “even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders.”

Freedom of expression cannot be used as a defense for facilitating unlawful conduct, such as allowing access to pirating websites. However, there is a fine line between restricting freedom of expression for lawful purposes only and enforcing disproportionate and potentially harmful measures like site-blocking orders that may inadvertently restrict access to legitimate content. While exceptional circumstances may warrant a site-blocking order, like those in 2009 as furthering the telecommunications policy objectives, internet and e-commerce law professor found site-blocking was not used here as a measure of last resort. Instead, he found that the decision leads to a “slippery-slope,” and that widespread .

Indeed, commentators from many international organizations are opposed to open-ended site-blocking orders. In 2011, the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe Representative on Freedom of the Media, the Organization of American States Special Rapporteur on Freedom of Expression, and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information released a claiming such orders are extreme measures, “analogous to banning a newspaper or broadcaster.” They found that they may only be justified in accordance with international standards. At the very least, safeguards should be in place to prevent misuse and over-blocking.

It is possible, though unlikely, that TekSavvy will . Given the high costs of appeal, appealing to the SCC may not be feasible for the Chatham, Ontario-based company. In the meantime, the Federal Court of Appeal decision sets a new precedent in Canada, arguably undermining the well-, in favour of protecting copyright holders from the possibility of copyright infringement over users’ expressive interests.

The post Federal Court of Appeal Upholds Canada’s First Website-Blocking Order in Decision that Raises Freedom of Expression Concerns appeared first on IPOsgoode.

[Your ISP] has received a notice from a content owner that alleges an act
of copyright infringement from an Internet Protocol (IP) address assigned to you
at the time of the alleged infringement. We are required by law to let you know
that we have received this notice.

The law in question is the Notice and Notice scheme (). The latter provision, s 41.26, outlines the steps that an ISP must take once it receives a notice of claimed infringement:

1. The ISP forwards electronic notice to the person associated with the IP address alleged to be source of infringement.
2. The ISP keeps records for six months that will allow one to determine who was associated with that IP address.

Now, while you may not realize it, there are entire systems in place to get that notice to you and to further produce your identity to the copyright holder (if the ISP is so ordered by a court). Like most things, getting that system in place and using it costs time and money, and since so many allegations of infringement go out each day (around 5,000 per day from Rogers alone), it turns out to be quite a bit of time and money indeed.[i] In the recent case of [Rogers], the Supreme Court of Canada helped clarify who exactly should foot the bill.

Parliament structured s 41.26 in such a way that ISPs could be reimbursed according to rules at the discretion of the Governor-in-Council. The Cabinet, as is its prerogative under s 41.26(2), decided not to entitle ISPs to any reimbursement for complying with the Notice and Notice regime. One is left, then, with the common law to fill any gaps (notably, actually producing the identity of the alleged infringer is done by application, not by statute).

In Rogers, Justice Brown, writing for eight justices, makes some key observations about this setup. Firstly, he refers to the legislative intent behind ss 41.25 and 41.26 of the .[ii] The background of the 2012 changes to the Copyright Act makes clear that Parliament intended to balance the interests of not only copyright owners and content users, but also of “Internet Intermediaries”.

Secondly, Justice Brown clarifies that the records that must be stored under s 41.26 refer to ones which would allow the ISP to determine who the alleged infringer is.[iii] It does not include the act of translating this information into a means which would be accessible and comprehendible to the copyright owner or the courts. It is this finding which opens the door for ISPs to claim expenses for complying with Norwich orders, separate from compliance with Notice and Notice.

However, according to Justice Brown, it would not be reasonable to reimburse the ISP for work it has already done under the Notice and Notice scheme.[iv] It is this final idea which appears to be the point of contention between Justices Brown and Côté.

Justice Côté agrees with the other justices that “any work required to determine an alleged infringer’s identity and disclose that identity … is not subsumed within the notice and notice regime.”[v] In practical terms, though, the process required to comply with a Norwich order moves beyond verifying pre-existing information obtained by the ISP under Notice and Notice. Instead, it requires ab initio excursions, on the part of the ISP, into figuring out the identity of the alleged infringer.[vi] This is especially the case given the possibility of information changing over the six-month period, and the fact that the statute only requires a ‘static’ record from the time at which notice was received.[vii]

Regardless of their differences, both sides agree that ss 41.25 and 41.26 are not so broad as to exclude the possibility of reasonable reimbursement for ISPs, in contrast to the Federal Court of Appeal. Indeed, both sides also concur in the ultimate result. That is, the matter was remitted to the motion judge for an adequate assessment of the reasonability of Rogers’ process and determination of reasonable costs (although one is sympathetic to Justice Bosworth in that, before the law was clarified on appeal, it wasn’t clear that any fee would have been reasonable, regardless of what process Rogers was using).[viii]

Beyond the reasoning, one is left with the feeling that something is missing from both opinions. The approach seems to be unquestionably one that treats ISPs as a distinctly third party to the issue of the Notice and Notice regime and Norwich orders. Is this really the case? After all, the very acronym stands for internet service provider. The third party in this case provides the alleged infringer access to content for a fee, and is able to pass along those costs to content users.

Is Rogers just about the entitlement of third parties to reasonable costs for complying with Norwich orders? Or might it fit with a broader common law principle that it is up to the holder of copyright to pursue the enforcement of that right? As pointed out in Rogers, the Government of Canada has seen fit to balance the rights of content users and copyright holders by having the third party bear the costs. But when faced with the reality that those costs can be passed on (one way or another) to content users, maybe the ruling in Rogers becomes much more about user rights than statutory interpretation.

Peter Werhun is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

[i] at para 63.

[ii] Ibid. at para 25.

[iii] Ibid. at para 43

[iv] Ibid. at para 52.

[v] Ibid. at para 62.

[vi] Ibid. at paras 63-64.

[vii] Ibid. at para 68.

[viii] Ibid. at paras 56-58, 74-75.

The post Don’t Tread on Me (or My ISP): Rogers v Voltage Pictures appeared first on IPOsgoode.

The panel on “Responsibility for Defamation and the Problem of Intermediaries” tackled the issue of liability of internet service providers (“ISPs”) for disseminating or maintaining defamatory content online. Scholarly and industry-savvy panelists grappled with traditional concepts and doctrines in an attempt to formulate a new theory of responsibility for ISPs. Three routes were proposed by the panelists: (1) ad hoc inquiries into fair balance, (2) adoption of the least invasive means and proportionate measures; and (3) revamping the publication rule.

No one is certain that these efforts will resolve the problem of online intermediaries, so looking to the courts’ current take on the matter may hint at additional existing routes and at the likelihood of success of the efforts proposed by the panelists.

Fair Balance

, lecturer at the University of Cambridge, discussed the different notice regimes applicable to ISPs in relation to uploading and downloading content of a user. A novel system of “notice-and-fair-balance” was proposed with a view to reconcile fundamental rights of the different the stakeholders in the triadic relationship between the injured party, the intermediary, and the internet user. The panelist argued that freedom of expression, the right to communicate and to conduct a business, as well as reputational rights, are of equal caliber and should co-exist alongside each other, without a priori recognition that one trumps the other. A desirable solution, she noted, is to conduct ad hoc inquiries into what, in the particular circumstances, represents a fair balance between rights and compromises.

Regardless of the speaker’s endeavor to shed light on what fair balance might mean and how it can be conceptualized, she conceded that striking a balance is easier said than done and that it is most often seen as an empty slogan unlikely to provide real solutions. The current position of North American courts on online intermediaries’ liability (see and ) in fact implies that courts are looking beyond fair balance in these circumstances; their primary goal, instead, is preventing multiplication of wrongdoing on the internet.

Proportionality

Bram Abramson, Open Web Fellow with the Mozilla foundation, pointed that the traditional innocent dissemination doctrine underlying the liability regime applicable to ISPs still leaves constitutional questions unaddressed. To some degree, there is still a restraint on the ISPs’ ability to communicate freely, disseminate information, and carry on business, because the system subdues ISPs to liability unless they take down content upon notice. This, Bram argued, does not represent the least invasive means to remediate the dissemination of defamatory content, as a chilling effect is almost certain in these circumstances and is an incentive to removing content to avoid exposure to liability. Engaging proportionality may thus keep ISPs from bearing responsibility for defamation when other efficient and least invasive measures are available. In this context, the creation of a regulatory framework that allows the ISPs to act autonomously without the involvement of authorities, as well as other mechanisms for online dispute resolution, seem reasonable routes to follow.

This view, however, is not aligned with the current take of North American courts in regard to online intermediaries’ liability. Although free expression may seem compromised in some instances, Canadian and American courts agree that sustaining freedom of expression values of unlawful acts on the internet. As with the use of , the courts appear to have signalled an intent to create a “duty to assist” a person wronged with no resort other than relying on non-parties who are not themselves guilty of wrongdoing. As explained in fullness , a principled rationale for granting orders against intermediaries seems to be needed to bring the rule of law to bear on the Internet to rein in illegal activity, to remediate wrongful actions taken under the cloak of anonymity, and to enforce ignored takedown requests and orders (more ).

As to the creation of more proportionate means of dispute resolution, there seems to be no restriction imposed by the courts on autonomous mechanisms for more efficient responses.

Revamping the Publication Rule

The breadth of activity captured by the traditional publication rule, as Professor of the University of New Brunswick noted, is too vast, capturing even the narrowest scope of ISPs’ activities in linking or highlighting defamatory content. As a result, she argues that a new theory is necessary so that ISPs are not easily liable as defamers when they never created defamatory content. Professor Young proposed that the new concept of publication encompass a knowing involvement in publishing the relevant words (per ; ).

Re-conceptualizing publication, however, does not seem to resolve the problem of online intermediaries either. To the extent that the courts have signalled that their primary goal is to prevent further dissemination of illegalities in general in the internet space, the determination of who to attribute blameworthiness to loses relevance where a multitude of actors may be involved. As a result, whether or not ISPs can be deemed publishers in a strict sense will unlikely interfere in how ISPs should be engaged in halting defamatory content in the internet.

The Bottom Line

In Canada, Equustek brought about a fundamental shift in the parameters of the debate around online intermediaries liability. As a result, traditional concerns involving notice regimes, the breadth of the concept of publication, and the doctrine of innocent dissemination became less relevant. Equustek signals, in broad strokes, that the courts are unlikely to allow actors to avoid the rule of law in the internet space. This approach does not require intermediaries to decide which content is defamatory but it does engage ISPs in a duty to assist a wronged party in response to harm caused by unreachable wrongdoers. The decision may be unpalatable for advocates of free expression and unrestrained right to communicate. However, it represents the courts’ view on how to rein in illegal activity in the context of fast-moving and far-reaching developments in technology and social values. This view might be worth considering when we think about reform of defamation laws.

Bruna D. Kalinoski is a contributing editor for the IPilogue and holds an LLM from the Osgoode Professional Development Program at 91��ɫ.

The post Fair Balance, Proportionality and Revamping the Publication Rule — Will these Efforts Resolve the Problem of Online Intermediaries? It’s Unlikely. appeared first on IPOsgoode.

Which is the legal framework surrounding Internet Service Providers (ISPs) in the EU, when it comes to copyright protection? The following article analyses the importance of ISPs in the enforcement of rights in Cyberspace and in balancing different interests.

This work finds its roots in the essay composed in the context of the LSE Summer School 2015 Cyberlaw course attended by the author, during which he was given a full introduction on all the hot topics covered by Information Technology Law.

SCENARIO

A European ISP, EasyTelco, leases to its clients its fiber-optic cables to deliver fast Internet access.
A movie producer, DotCom Entertainment, has recently informed EasyTelco that some of its clients are allowing users to access a website based in Greece, called FreeShare.com, which hosts unauthorised copies of some of the products of DotCom Entertainment. Hence, they ask EasyTelco to block access to FreeShare.com and to any other site on which they know are illegally hosted DotCom Entertainment movies.

THE LAW

As a matter of simplicity, we will not domicile EasyTelco in any EU State in particular, in order to hold a more generic point of view. Moreover, we will focus only on the ISP regime, omitting the position of the other subjects involved in the case.

First, it is easy to recognise that DotCom Entertainment, being the author of the multimedia products involved in the dispute, holds a rightful copyright over them, which includes, among others, an exclusive right to make or authorise the making of copies of the work and to decide whether to issue those to the public. Thus, it is copyright infringing to engage in unauthorised copying for commercial purposes, and the law gives action on that to the right holder.

In the light of this right, the position of EasyTelco is a complex one, because it lays at the very cross-over between contrasting interests, as we will see.

The ISPs legal status has been shaped by the European Electronic Commerce Directive[1] and the Copyright and Related Rights in the Information Society Directive[2]. As a matter of fact, Art. 8(3) of the Copyright and Related Rights in the Information Society Directive creates a “notice and take down” system:

��“Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”

However, protection of copyright needs to be balanced with the safe harbour provision of the art. 15(1) of the Electronic Commerce Directive, which says that:

��“Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.”

The article refers to art. 12, 13 and 14, which all define different types of ISPs, to identify the subjects benefiting from the protection of the above-mentioned article. In brief, the three articles set forth that “mere conduit”, caching and hosting providers shall not be liable for the information they transmit, cache and host, unless they are made aware of their (defamatory, copyright infringing, etc.) nature. In particular, art.12[3] is the one relevant for our purposes, as long as it defines the “mere conduit” provider as whoever allows transmission of information in or access to a communication network, which happens to be the exact activity of EasyTelco. As a final point, the third paragraph of the article allows norms such as art.8 of the Directive on copyright protection, stating that:

“3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement.”

Therefore, EasyTelco should not be held liable for copyright violations occurred within its connection services, as long as it is unaware of them, according to the general prohibition set forth by art.15 Ecommerce Directive on imposing a general duty to monitor the content of communications. However, following the “notice and take down” system, it is likely that a court would grant an injunction to the claiming party to oblige EasyTelco to unable access to copyright infringers such as FreeShare.com.

AN EXAMPLE FROM THE UK

An English case helps us understanding how courts balance the two contrasting EU provisions: Twentieth Century Fox and ors v British Telecommunications plc (Newzbin II) [4]. The “Studios” were trying to close the P2P sharing website Newzbin, liable of hosting copyright infringing materials. The claimants decided to seek an injunction under s.97A[5] of the CDPA 1988, which mirrors art.8 of the Copyright and Related Rights in the Information Society Directive, against BT, to oblige it to prevent users to access Newzbin via the inclusion of the URL in the Cleanfeed blacklist.

As a matter of fact, the majority of the ISPs in the UK have implemented since 2004 a technical system developed originally by BT, called Cleanfeed, which blocks all the requests from the UK to any webpage inserted in a blacklist because of hosting child abuse related images. This content blocking solution has proved to be the ideal solution to inhibit access to sites which have been found infringing copyright during their activities, but whose servers are located abroad, consequently voiding any chance of direct enforceability of a UK court order. Then, when BT claimed violation of art.15 of the Ecommerce Directive, Arnold J pointed out that, due to the previous existence of the Cleanfeed filter, adding a single site to the blacklist could not be regarded as imposing a general obligation, so he granted the injunction to the claimants. In arguing that, he referred to a similar Belgian case[6] at that moment under the scrutiny of the ECJ, where the Belgian authors society was asking the national ISPs to cover all the communications across their networks with a totally new monitoring system to prevent copyright violations. Arnold J underlined the striking difference between the two cases, and that only the Belgian one implied a violation of art.15, as it was eventually ruled by the ECJ, because it obliged all Belgian ISPs to create, at their own expenses, a brand new filtering scheme.

THE DEBATE

Nowadays, ISPs are one of the most powerful tools to regulate cyberspace and to enforce laws and court orders, in a manner that remembers the concept of “regulation by architecture” theorised by Lawrence Lessig[7].�� As a result, they are at the very intersection of various interests, from copyright to freedom of expression, right to privacy and the preservation of a functional and efficient Internet.

”Originally the European legislature made a lot of efforts to restrain intermediaries from choosing
party and made sure they would take up a merely neutral-passive role. This is clearly reflected by the
special exemption regime installed by the E-Commerce Directive that was adopted in 2000 as a
response to the disparities that existed amongst Member States concerning the liability of service
providers acting as intermediaries which prevented the smooth functioning of the Internal Market”[8].

However, legislators are constantly looking for new solutions to regulate them, as the French HADOPI system. HADOPI (Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur Internet) is an administrative authority to whom copyright holders may notify infringements of their copyright, hence activating a so-called “three strikes procedure”, which consists of two consecutive warnings, first an email, then a more formal letter, down to the last step if the user continues in his offending activities, which contemplates a temporary suspension of internet access. Concerns related to the constitutionality of the new law were raised before its approval by the Conseil Constitutionnel, which eventually led to introducing the possibility for the user to appeal to a court against the HADOPI’s suspension of Internet access. Similar multi-strikes approaches have been followed by countries like U.S., Eire and the UK with the Digital Economy Act 2010, but all of those hide a problem of fair balancing between the rights at stake.

There are clear problems surrounding that design-based manner of enforcing law on the Internet, unquestionably one is the power to limit freedom of expression, a fundamental right as acknowledged by the ECHR (art.10), which is given to an administrative authority, expression of the government, and not to the judiciary.

Again, as soon as copyright holders’ claims start growing, it is not clear how the courts will deal with extending blocking techniques to all the offending users without contrasting with the general prohibition of art.15 of the Electronic Commerce Directive and the neutral role of ISPs it wants to preserve. Lastly, it might be argued that also serious privacy matters arise when an administrative body such as HADOPI requires surveillance over a citizen. Indeed, art. 8 (2) of the Human Rights Act allows some limitations of the right to privacy one enjoys only for, amongst others, “the protection of the rights and freedoms of others”, which could be the case when enforcing copyright. Nevertheless, are we sure it is best way to allow a body of the Government to compress a fundamental right just to protect an economic interest of some corporations? An authoritative point of view on the subject was expressed in 2008 by the ECJ in the Spanish Promusicae v. Telefonica, in which a copyright holder asked the ISP to communicate the personal data of users of Kazaa to allow suing them in civil trial. The court decided that there was no obligation under UE law for Member States to impose a duty to disclose personal data to ensure copyright protection.

Curiously, it is interesting to notice how even in Italy the one year-old regulation on online copyright issued by AGCOM, it is under review at the moment by the Italian Constitutional Court. The reasons behind this is that the Authority, quiet similarly to HADOPI in France, wants to protect copyright holders up to blocking access to offending sites after a summary hearing of the parts involved. As distinctly reported by Marco Bellezza in an article appearing on Medialaws.eu[9], what basically has been challenged is that this procedure underlies some critical constitutional issues, i.e. the fact that orders to limit ��a fundamental right as freedom of expression in favour of a so-called “economic freedom” should not come from a regulation of an executive body, but from an act of parliament, and together with the chance of battling them in court, not before a mere administrative authority.

[1] Dir. 2000/31/EC of the European Parliament and of the Council of 8 June 2000, OJ L 178, 17 July 2000.
[2] Dir. 2001/29/EC of the European Parliament and of the Council of 22 May 2001, OJ L 167, 22 June 2001.
[3] “(1)Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted […]“
[4] [2011] EWHC 1981 (Ch).
[5] “(1)The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.”
[6] Scarlet Extended SA v SABAM. (C-70/10) [2012] ECDR 4.
[7] Lessig, L. (1999) “Code and Other Laws of Cyberspace”. New 91��ɫ: Basic Books.
[8] Werkers, E. Intermediaries in the Eye of the Copyright Storm – A Comparative Analysis of the Three Strike Approach within the European Union (August 15, 2011). ICRI Working Paper No. 4/2011.
[9] Bellezza, M. #dda online: la questione di costituzionalità e il regolamento AGCOM. Retrived: 05/08/15, from: http://www.medialaws.eu/ddaonline-la-questione-di-costituzionalita-e-il-regolamento-agcom/

The post Internet service providers liability and copyright protection in the EU appeared first on IPOsgoode.

Some of us have engaged in this practice for years, but never in the context of a formal “notice and notice” regime implemented by the Copyright Modernization Act at the start of the new year. So what exactly does this regime entail and how might it affect our online viewing habits?

“Notice and notice” regime

The is a uniquely Canadian approach and has, in fact, been operating in an unofficial capacity for over ten years before becoming law on January 1, 2015. The regime requires internet intermediaries, such as Internet Service Providers (ISPs), to forward infringement notices sent by copyright owners to subscribers whose internet addresses have been identified as sources of possible infringement. These notices must include details on the claimant, the copyright works at issue and the alleged infringing activity.

If the intermediary fails to forward the notification, it must supply an explanation or face damages of up to $10,000. Intermediaries are also required to retain information on the subscriber for six to twelve months.

The notice and notice regime as it affects online viewership

So does this law apply to Internet video streaming? And if so,��how?

It appears that very few legal concerns arise with regard to authorized online video services operating in Canada. Examples include Netflix Canada, Shomi, CraveTV, YouTube, and streaming videos that originate��directly from broadcasters or content creators. Viewers who stream from these sites are unlikely to be forwarded notices of infringement because these content providers have obtained permission to make the copyrighted content available or have made the content easily removable by rights owners.

Next up for consideration are the authorized services not currently serving the Canadian market. Think Hulu, Amazon Prime, and the US version of Netflix. Here, the analysis gets a bit tricky.

Canadian users who��access this content by circumventing "geo-blocks" (a method by which��online service providers block users outside a particular geographic area from accessing their content) via a “virtual private network” (VPN) are likely violating the service provider's terms of service. But that is not all.

Geo-blocks could potentially be considered technological protection measures (TPMs). A TPM is any effective technology, device or component that controls access to a work whose use is authorized by the copyright owner, or restricts the exercise of an exclusive right held by the copyright owner ( of the Copyright Act).��It is a prohibition to circumvent a TPM (), and the copyright owner is entitled to remedies against the infringing individual ().

This being the case, circumvention of a geo-block via a VPN to stream copyright protected material might constitute an infringement and could result in the service of an infringement notice.

Finally, there are the unauthorized streaming websites that offer free content without having obtained permission from copyright owners. This is��another potential scenario in which infringement can occur.

Typically, pursuant to of the Copyright Act, a person who, for the purposes of allowing the telecommunication of a work or other subject-matter through the Internet, provides digital memory in which another person stores the work does not, by virtue of that act alone, infringe copyright in the work. However, these unauthorized websites, because they are “enabling” infringement, can be shut down pursuant to ��if they are located in Canada.

As for users of such websites,��it is currently uncertain whether their act of streaming video would be found to infringe. Under , a temporary reproduction of a copyright protected work, if completed for technical reasons, is not an infringement. When streaming a video, either a full-length temporary copy is created on your computer via the caching process (and will be deleted the moment the video is closed), or the data is deleted as you watch. Thus, video streaming does not involve actually downloading a permanent��copy of the work; at most, it merely creates a temporary��copy.

However, in ,��the Federal Court of Appeal��held that “ephemeral” copies -- reproductions that exist solely to facilitate a technological operation by which audiovisual work is created or broadcast -- are, if unauthorized, an infringement of the copyright holder’s rights.

Although this holding was made in the context of broadcasting, it may be applicable in the streaming context. As leave to appeal to the Supreme Court of Canada was granted and oral arguments were recently on March 16th, we will soon be hearing the SCC's opinion on the matter.

The jurisprudence on temporary reproductions in other jurisdictions appear just as unsettled. For instance, the that there is no violation when “a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated,” despite some courts holding that . Overseas, meanwhile, the Court of Justice of the European Union (CJEU) ruled on June 5, 2014 that .

However, even if viewers are found to have infringed, the only immediate recourse available to the rights holder appears to be sending a notice of claimed infringement to the host site pursuant to .

Bottom Line

To be safe, it might be wise to stick to your authorized Canadian content providers. But if you are unsatisfied with��the offerings of those sites and contemplate streaming an episode or two of your favourite show from an unauthorized source, tread with caution. You just might find yourself breaking bad.

Sally Kang��is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post "Notice and Notice" and Video Streaming - Are You Breaking Bad? appeared first on IPOsgoode.

“Innocence of Muslims”

In 2012, producer Mark Basseley Youssef cast Cindy Lee Garcia, a struggling actress, in a minor role in the film “Dessert Warrior”, a production that would never come to fruition. Garcia’s performance would instead appear in a 13-minute controversial film released on YouTube entitled “”. ��The film portrayed the prophet Mohammed as a murderer and sexual deviant. Five seconds of Garcia’s previous work on Dessert Warrior were used in the film, and the clip was partially dubbed over so that she appeared to ask, “Is your Mohammed a child molester?”

It was only when the Muslim backlash began that Garcia realized what had happened.

The inflammatory film immediately sparked political controversy for its anti-Islamic content, causing outrage throughout the Muslim community. Garcia began to receive threats to her life, and petitioned Google to remove the content from YouTube. After Google refused her repeated requests, on the basis that she was not the copyright owner of the film, Garcia initiated legal action to obtain an injunction, requiring Google to take down the video on copyright infringement grounds.��

Decision by the United States Court of Appeals for the Ninth Circuit - Reconceiving Notions of Copyright Ownership

In a 2-1 decision, Chief Judge Alex Kozinski proposed that an actor’s performance in a film is copyrightable, when fixed, if it evinces some minimal degree of creativity. This statement appears inconsistent with , a longstanding authority on what it means to be an author. In that case, the court held that a creative contribution does not suffice to establish authorship of a movie. However, Kozinski argued that Garcia’s situation could be distinguished from Aalmuhammed, as Garcia was not asserting ownership over the whole work: “[n]othing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author to the entire work.”

Despite the fact that Garcia conceded she had no creative control over the script or her performance, the majority held that Garcia likely has a copyright interest in her personal contribution, being “the portion of the film that represents her individual creativity.” Finding for Garcia, the Court ordered Google to remove all copies of “Innocence of “Muslims” from YouTube and every other platform within Google’s control. In addition, the order requires that Google take all reasonable steps to prevent further uploads of the film.

Most contributions to a motion picture are created as works made for hire (the US equivalent of works made in the course of employment under Canadian copyright law), which prevents the actor from claiming copyright in his or her performance. Alternatively, the filmmaker’s use of the actor’s performance will usually be permitted due to an explicit or implied license.�� As such, it may be a rare occasion where actors can claim copyright in their individual performance in a film.

Nevertheless, the different interpretations of the divided Court illustrates the uncertainty over the application of the law in this area.�� The majority found that Garcia had a copyright interest in her contribution, although the dissenting judge noted that Garcia was "an actress acting out a script that she did not write under the direction of someone else who provides all of the instruments, tools and leadership.” Characterized in this manner, it is difficult to see how Garcia’s performance jives with traditional conceptions of authorship and copyright-protected expression under both US and Canadian law.

The decision implies that anyone who contributes creative expression to a movie or other form of copyrighted work may have an independent copyright interest, which they can use as a sword against the work’s distribution and performance.

What’s the Big Deal?

To avoid liability and benefit from the safe harbor provisions in the US (DMCA), ISPs and OSPs (service providers) must abide by the legislation’s "notice and takedown" (NTD) rules under .�� Under the DMCA, service providers are required to prevent infringement by expeditiously taking down allegedly infringing subject matter when they receive an allegation of infringement from a copyright owner.[1]

While the Ninth Circuit’s take-down-and-stay order originally required Google to remove the film in its entirety, in response to Google’s objections, the Court later restricted the order to versions of the film that include Garcia’s performance. However, the tailoring of the order does not alter the fact that the Court’s novel approach to copyright ownership increases the burden on service providers in responding to allegations of copyright infringement under the DMCA.

The NTD system has already been heavily criticized for introducing a pre-judicial determination of copyright infringement on the part of service providers, who have no expertise in copyright law.[2] As a result, service providers will often remove content based on tenuous or unsubstantiated copyright infringement claims in an effort to immunize themselves from liability.

By expanding the scope of authorship to contributors who wouldn’t previously have been considered copyright owners, the Garcia decision forces online content platforms to ascertain which of the actors in a particular video have a legitimate copyright claim. As Andrew McDiarmid of the US Center for Democracy and Technology : “DMCA takedown notices from frustrated bit players, which last week would have been easily ignored as not coming from the copyright holder for the work, might now be honored for fear of litigation.”

Suppose an individual alleges infringement of their contribution to a copyrighted work and notifies the service provider, as Garcia did. ��Due to last week’s decision and the liability structure of the DMCA, rather than dispute the claim, that��service provider is much more likely to remove the entire work without bothering to determine the legitimacy of the person’s copyright interest or going through the hassle of removing only those segments pertaining to the claimant’s particular contribution. It seems reasonably inevitable that the Garcia decision, combined with the NTD regime, will prove to be a significant barrier to freedom of expression.

Such damaging repercussions may have been avoided under a notice-and-notice system of��service provider liability, such as the one implemented by the Canadian Under our Canadian scheme, service providers are not liable for infringement as long as they forward the notice from the copyright owner to its allegedly infringing end user. There is no requirement that the��service provider remove the disputed content. Under such a system, the consequences of the Garcia decision for service providers would be limited to the administrative hassle of forwarding significantly more alleged infringement notices from a greater pool of potential copyright owners. This is particularly noteworthy given that it may be easier for someone in Ms. Garcia's shoes to claim copyright infringement in Canada in light of and newly enacted , which contemplate the copyright interest of performers in certain circumstances.

Although a US decision, the Court’s ruling in this case may have a chilling effect for internet users and content creators worldwide, as the future of online expression and democratic dialogue is dangerously threatened under the notice-and-takedown provisions of the DMCA.

The post Garcia v Google Inc.: Copyright Ownership, ISP Liability and the Future of Freedom of Expression appeared first on IPOsgoode.

In the decision no. 11/2014 handed down on January 31st, the Audiencia Provincial Civil de Madrid has rejected Telecinco’s appeal against the judgement of the Juzgado de lo Mercantil dated 20th September 2010.

The proceedings concerned a claim for copyright infringement raised by Telecinco as a consequence of the posting of some videos on the YouTube platforms youtube.es and youtube.com.

The Court of First Instance had found that YouTube bore no responsibility for the publication of copyrighted materials, since it acted as hosting provider having no control over the contents posted by users through the use of its services.

The appeal decision establishes itself in the wake of the judicial efforts of EU Member States’ courts to determine upon which conditions ISPs should face the consequences of violations (including copyright infringements) committed by users.

The legislative framework in force in the EU, in fact, constituted by the Directive 2000/31/EC (E-Commerce Directive), contains provisions which are likely to appear dated and, to a certain degree, not consistent with the evolution of the technological scenario.

The Court of Justice of the European Union, in the leading case Google v Louis Vuitton (C-236/08 to C-238/08), has pointed out that the provisions governing ISPs liability must be construed in accordance with the ways operators actually perform their services. A crucial factor to determine whether the liability exemptions set forth in the Directive are enforceable, in the Luxembourg Court’s view, is whether the ISP in question does act in a purely passive way, i.e. as an intermediary.

Moving to the case, the appeal brought by Telecinco against the decision of the Juzgado Mercantil was based on different grounds.

First of all, Telecinco alleged that YouTube did actually operate as a content provider with an editorial control over the website. Then, the point was not whether liability exemptions were applicable or not, since the argument of Telecinco assumed that YouTube bore a direct responsibility, acting as a content provider.

In a nutshell, the attempt of Telecinco was to demonstrate that YouTube fell outside the scope of the service providers and, accordingly, could not avail of the provisions of the E-Commerce Directive.

To support this claim, Telecinco referred to some circumstances that were supposed to reflect the exercise of an editorial control by YouTube. Among others, it was pointed out that (i.) YouTube had obtained from the relevant collecting societies the licenses concerning copyright and related rights over certain contents; ��(ii.) YouTube had established a content regulation through the implementation of a policy that must be accepted by users; ��(iii.) YouTube had provided particular “Terms and Conditions of Service”; (iv.) YouTube selected the most popular contents and provided a classification of the contents in different categories.

According to the Court of Appeals, none of these circumstances support the assumption that YouTube was operating as a content provider. The fact, for instance, that YouTube had obtained licenses for the use of certain contents or that contents were classified in different categories, does not imply that it is acting in a non-passive way, in the sense required by the Court of Justice to exclude the applicability of the liability exemptions.

The second point raised by Telecinco was that, even if YouTube acted as a service provider, the liability exemption for hosting providers -entrusted to Article 16 of the Law 34/2002 (implementing the E-Commerce Directive)- was inapplicable. In the appellant’s view, even were Telecinco qualified as service provider, it would have nevertheless had actual knowledge of the existence of unlawful activities. Thus, Telecinco could not benefit of the liability exemption.

In this regard, the Court expressly quotes the reasoning of the Tribunal Supremo in a ruling of 2009 regarding the construction of the requirement of “actual knowledge”. In the view of the Spanish Supreme Court, the actual knowledge must be established not only “when a competent authority has declared the unlawful nature of the contents, ordered the removal or the blocking of the same and the provider has been noticed of such decision”. In fact, even the knowledge of the unlawful activities that a provider obtains indirectly or otherwise, regardless of the specific ways, is relevant.

In the case at stake, the Court points out that a notice was given by Telecinco to YouTube that copyrighted contents had been unlawfully uploaded on the website and that Telecinco’s mark was featured on the images of the concerned videos. Making reference to the judgment of the Court of Justice in the case ��’O��é���� (C-324/09), the Court of Appeals has clarified that the sole communication that a rightholder provides to the owner of a website noting the existence of violation may not suffice to establish the “actual knowledge” requirement. For instance, the notice could be not specific enough in defining the contents that amount to copyright infringements.

In the case at stake, the Court has found that nothing in the notices given to YouTube permitted to identify which contents were infringing Telecinco’s rights. Then, YouTube had no actual knowledge of the parts of the website that must be subject to removal or blocking as result of a copyright violation.

The third and last argument advanced by Telecinco claims for the imposition over YouTube of a system aimed at blocking the access to its services to the users involved in copyright infringements.

As regards this point, the Court of Appeals has referred to some decisions of the Court of Justice (Sabam, C-360/10 and Scarlet C-70/10, in particular) to conclude that such a system would (i.) undermine the protection of other fundamental rights enshrined in the Charter of Fundamental Rights of the European Union, and (ii.) be in contrast with the absence of a general obligation of control over ISPs.

In fact, any order directed to ISPs for the removal of unlawful contents in breach of copyright is not per se prohibited in the EU relevant law, but must respect the conditions set forth under the Directive 2001/29/EC and 2004/48/EC, further to the E-Commerce Directive.

Then, the Court has rejected the appeal and confirmed the decision of the Juzgado Mercantil.

In light of the arguments convincingly used by the Court, it is supposed that there will be no room for different rulings in the case in the future.

[The original posting of this can be found on the blog, MediaLaws: Law and Policy of the Media in��a Comparative Perspective.]

The post News on ISPs liability from Spain: YouTube not responsible for infringements of copyrighted materials. The second chapter of Telecinco v YouTube appeared first on IPOsgoode.

On January 16, 2011, the Supreme Court heard an appeal in the case of

The appeal arose from the following reference question put by the (CRTC) to the Federal Court of Appeal:

Do retail Internet service providers (ISPs) carry on, in whole or in part, “broadcasting undertakings” subject to the , [S.C. 1991, c. 11 (the Broadcasting Act)] when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?

The terms “broadcasting” and “broadcasting undertaking” are as defined in the Broadcasting Act as amended.

The Federal Court of Appeal heard submissions from two groups. The “Cultural Groups”, consisting of the (ACTRA), the (CMPA), the (DGC), and the (WGC), argued that the question should be answered in the affirmative. This position was opposed by the “ISP Coalition”, including Bell, Cogeco, MTS Allstream, Rogers, and Telus. Shaw Communications also took part with separate counsel.

The question turned on whether ISPs engage in “transmission” in the meaning of the Broadcasting Act.�� In its 2010 lower court decision in the same case, the answered the reference question in the negative.�� Reading the definition of “broadcasting” together with the purpose and applicability to ISPs of the policy objectives of the Broadcasting Act, the Federal Court of Appeal accepted the argument that ISPs were “utterly ignorant” of the nature of the messages which move through their networks, and could not therefore be “broadcasting undertakings” since they only “provide the mode of transmission”.

At the Supreme Court, , made submissions on behalf of the Appellants, the Cultural Groups. He urged the Court to consider the difference between the activities of providing Internet access, which he argued includes transmitting content, and of acting as a “telecommunications common carrier”, which the defines as owning and operating the underlying “transmission facility” or physical network links through which transmissions are made.�� He characterized the ISP Coalition’s and Shaw’s arguments as asserting that content-neutral “passive transmission” is excluded from the Broadcasting Act.

Justices Abella and Rothstein were particularly active in questioning whether an ISP needed to have control over the actual content of a transmission in order to fall under the CRTC’s Broadcasting Act jurisdiction. Chief Justice McLachlin ended the discussion when she asked whether there was any danger that Canada’s Internet landscape could be regulated as heavily as China’s, to which Mr. Heintzman pointed out that the CRTC is mandated to only apply regulations under the Broadcasting Act in a way that fosters freedom of expression, and only when it is necessary to achieve the Act’s policy objectives.

responded on behalf of the ISP Coalition. He emphasized the limited nature of the CRTC’s reference question, that the only issue before the Court involved ISPs “in their role as ISPs”. Mr. Laskin took issue with the concept of “passive transmission”, and argued that Parliament’s vision was apparent, that ISPs fit more comfortably under the Telecommunications Act as “telecommunications common carriers” since they are unable to fulfill most of the Broadcasting Act’s policy objectives.

made submissions on behalf of Shaw, and argued that to answer the question the Court must look to a broader statutory framework which includes the Copyright Act. Under that Act, the Supreme Court previously ruled in the decision that ISPs were content-neutral “Internet intermediaries”, and therefore exempt from civil liability for copyright infringement. Mr. McHaffie suggested that ISPs do not need to be “telecommunications common carriers”, since the entire Telecommunications Act, which does not apply to broadcasting by broadcasting undertakings, operates analogously to the Copyright Act’s civil liability carve-out for content-neutral intermediaries. On the basis of this content-neutrality principle, Mr. McHaffie argued that ISPs must be treated as a single undertaking, whether they are involved in the transmission of audio-visual programs (broadcasting), or any other form of content.

In a brief reply, Mr. Heintzman suggested to the Court that ISPs were capable of furthering the Broadcasting Act’s policy objectives, should the CRTC identify a need for them to do so. He pointed to examples such as Project Cleanfeed Canada.�� Project Cleanfeed Canada is a system by which certain ISPs have agreed to block access to foreign child pornography tagged as such by Cybertip.ca

The case is one of considerable complexity, involving a wide array of highly technical defined terms. It remains to be seen what effect the Court’s decision will have on the CRTC’s oversight of broadcasting over the Internet, and on the interpretation of the Broadcasting Act and Telecommunications Act.

The post Supreme Court of Canada Considers "Broadcasting Undertakings" in ACTRA v. Bell appeared first on IPOsgoode.

On Tuesday,��November 24th, the federal government tabled legislation mandating all . Bill C-58 requires that Internet Service Providers (ISPs) report the Uniform Resource Locator (URL) or Internet Protocol (IP) address where child pornography may be available to the public. If the ISP has reasonable grounds to believe that their internet services are being used to commit child pornography offences, then they must also notify the police and retain all computer data that is in their possession or control for 21 days. The ISP is also prohibited from disclosing to anyone they have made a report or notification. Failure to comply with the Act may result in a fine of $10,000 or imprisonment for sole-proprietors and $100,000 for corporations.

ISP has been broadly defined in the Act to include those that provide Internet access, Internet content hosting, or electronic mail. This would apply to typical ISPs such as Bell and Rogers, as well as unconventional ones such as Google, Facebook, and Microsoft.

While all agree that child pornography is a horrific social ill and that a substantial effort should be made to reduce the production and distribution of this content, some criticize the legislation as putting too great of a burden on ISPs (particularly smaller ISPs which host thousands of web pages) to monitor. This, however, is a mischaracterization of the legislation. In fact, section 7 of the Act makes it clear that nothing in the Act “requires or authorizes a person to seek out child pornography”.

One of the other concerns is that this will open a Pandora’s box of privacy issues for ISPs. The Canadian Civil Liberties Association's��that “somebody may post a family picture or an artistic picture and if that is misinterpreted by somebody who works for an ISP and then feels compelled to tell police about it, all of the sudden that person…may find themselves being looked at a little more closely by police in a way that may invade their privacy.” Family and artistic photos are not the only types of content that may give rise to privacy issues. The recent phenomenon of may also generate content that an ISP would feel compelled to report.

Under section 3 of the legislation, the ISP only has to report content available to the public. Such reporting is unlikely to generate much privacy concerns. It is hard to believe that referring the police to content already in the public domain would invade a poster’s privacy.

The other reporting requirement, section 4, is of slightly greater concern. ISPs need reasonable grounds to believe that their internet services are being used or have been used to commit child pornography offences. The risk here is that an ISP providing email, private web pages, or newsgroups services, may need to retain this data and hand it over to the police, frustrating the users’ expectations of privacy for their innocent content.

Michael Geist has also criticized the legislation for . He believes “the real problems lies in dissemination of child pornography in newsgroups, private groups, and other private spaces that fall largely outside the potential for tips envisioned by Bill C-58”. It is quite apparent though that the legislation does envision the private sphere of the Internet. Why else would it��have such a broad definition of ISP that includes email providers? Admittedly, if an ISP has a policy of not reviewing users' private content, and the legislation does not require an ISP to seek child pornography within their network, then it is unlikely an ISP will have reasonable grounds to believe their services are being used to commit child pornography offences. Still, members or recipients of private content may report to the ISP suspected incidences of child pornography on their network.

Even if the Act does not specifically result in a greater number of ISPs reporting suspected incidents of child pornography, it still provides further dissuasion to individuals contemplating the distributing of child pornography in both the public and private internet spheres.

The post New Child Pornography Legislation Criticized: Burdensome, Infringes Privacy and Ineffectual appeared first on IPOsgoode.

The French Constitutional Court held that the "Creation and Internet" law - the law promoted by the Olivennes Commission and strictly supported by the President Sarkozy - is unconstitutional.

This Act - whose complete name is "Loi favorisant la diffusion et la protection de la création sur Internet" - had instituted a special authority which was empowered to monitor copyright infringements committed by internet users.

The institution formed by the law (HADOPI: Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet - High Authority of Diffusion of the Art Works and Protection of the Rights on Internet) was entitled to use a special enforcement method in order to combat copyright violations. This method was based on the so-called "three-strikes" procedure. The HADOPI, once informed by a copyright holder of a potential violation, was expected to send an e-mail to the internet user, as identified by his IP (internet protocol address). After this notification, the user would be invited to install a filter on his PC and be monitored by his internet service provider. The second step would be introduced by a certified e-mail, after accusation of repeated offences or of failure to comply with the provisions set out in the first e-mail.

The third phase involved HADOPI's power to request ISPs to suspend internet connections for infringing users for 2 months to 1 year.

It is remarkable that the French law did not provide a judicial recourse for the first 2 steps of the procedure, but only for the last one (which however couldn't be stopped during the trial).�� After its approval, the Act has been strongly criticized by scholars, by consumer associations, as well as by the European Parliament.

The Constitutional Court considered the law unconstitutional for the following reasons:

a) article 11 of the Déclaration des droits de l'homme et du citoyen of 1789 protects freedom of speech and recognizes it as a fundamental right; access to an internet connection can be considered a human right, as an expression of the freedom of speech;

b) only a judge - or rather a judicial decision - can order the disconnection of users, not a non-judicial authority;

c) French law is based on the presumption of innocence. On the contrary, users are punished with disconnection based only on whether copyright holders assume that they could be liable;

d) the Act provides a procedure which violates data protection law and users' personal rights.

The post The HADOPI law held unconstitutional by the French Constitutional Court appeared first on IPOsgoode.