While it may be somewhat surprising to me, it probably shouldn’t. Many years ago in the United States, the Digital Millenium Copyright Act (DMCA) was passed into law. As many people were, I was disappointed with it. It seems though with the proliferation of social media sites like YouTube, we begin to see the DMCA invoked more and more, specifically to protect the rights of copyright holders.
Now, this isn’t necessarily a bad thing, as the content creators have rights, however, in the United States, there is a provision called Fair Use, which in Canada can essentially be interpreted as the same as Fair Dealings. This seems to be one of the first points of contention when it comes to the DMCA. If not the first, it is high up the list. In summary, according to Wikipedia:
Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship.
This is one of the most publicly known exploitations of the DMCA. One of the most prominent examples of the use of the DMCA to take down content off the web was in the case of Prince objecting to any videos of his performances or music on YouTube. One of which was a mother videotaping her child dancing to a song by Prince. This among many other cases are examples of how the DMCA is abused in favor of the copyright holder.
There are provisions in the DMCA that allow for the copyright holder to to submit a takedown notice to an ISP or another content provider (YouTube et al.), but as an addendum to this, the alleged infringer is allowed to file a counter-notification to the copyright holder to claim the copyright holders error in the takedown.
With this, imagine for a second, the wild west (yes I have a little Red Dead Redemption on the mind). You’re walking through town and someone points his gun at you. His gun may be loaded or not, but it is up to you to know before you pull yours out. You could either surrender the situation, or pull out your gun. You pull your gun. At this point, there is no turning back. The first to aim can either back down because he believes he can be killed, or vise versa, but in either case, the person with the bullet can still fire. There really is no turning back once the second has pulled their gun out.
In reality, if the alleged infringer files a counter-notification, the option as to whether he can be the plaintiff or the defendant in court it now a possibility. Both sides could leave it as is, but if the original copyright holder that filed the DMCA takedown notice backs down, he is still liable to be taken to court by the by the alleged infringer.
Contrary to what some may think however, these provisions that allow for the takedown and counter-notifications on infringing content are not part of the DMCA. Back in 1998 when the DMCA was passed into law, US congress had also built another act to be included into the United States Code. The Online Copyright Infringement Liability Limitation Act (OCILLA), which was also known as DMCA 512. The relevant sections of the US Code that pertain to those examples stated are Title 17, Chapter 5, Section 512(c)(3) regarding the notification of network providers. The key section that puts power into the hands of the alleged infringer lie specifically in Section 512(f). Misrepresentation.
I intend to talk more about where the Government of Canada stands on its new copyright introduction in a second, but I want to make one crucial point here on what the existing US legislation does, and what actually happens in practice. Section 512(f) of the code states the following:
(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
The first major take away from this is that word for word, this subsection describes in legalistic terms the situation I’ve described above. There is one flaw in this when in practice however. The inclusion of the word “knowingly”. In many cases, the copyright holder requests a takedown believing they are in the right. The defendant believes they have every right to file counter-notice on the claim. Neither of them are “knowingly” misrepresenting their claim. Even if one of the parties were, it may become difficult to prove that they misrepresented their claim.
This is a general flaw in any court system around the world. But what if the alleged infringer made money on derivations of the copyright work that fall legitimately under Fair Use or Fair Dealing? Can this person then file suit against the copyright holder for the estimated lost revenue due to the takedown notice? I don’t necessarily have these answers since there may be other laws in the code that deal with this, but they are questions that need to be kept in mind when dealing with introducing new legislation into the Canadian Copyright Act.
There are unique provisions in Bill C-32 however, that can potentially curb fraudulent or misrepresented claims, and it starts with the copyright holder providing notices to a service provider. Or, in the thick legalese of the bill, the “person” as defined by the following subsection:
41.25 (1) An owner of the copyright in a work or other subject-matter may send a notice of claimed infringement to a person who provides:
(a) the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic location that is the subject of the claim of infringement is connected to the Internet or another digital network;
or
(b) for the purpose set out in subsection 31.1(5), the digital memory that is used for the electronic location to which the claim of infringement relates;
So in other words, subsection (a) represents organizations like internet service providers, and subsection (b) would be in the case of organizations like YouTube, or internet forums. Places that store user generated content, but are not responsible for the content itself.
In the proposed bill however, an interesting section is introduced that is quite unique, but would currently sit dormant. The following is an excerpt from section 41.26:
41.26 (1) A person described in paragraph 41.25(1)(a) or (b) who receives a notice of claimed infringement that complies with subsection 41.25(2) shall, on being paid any fee that the person has lawfully charged for doing so,
What this will essentially mean is that if you are a copyright holder, and you have identified an infringing digital production (audio, video, etc.), you are required to provide notice to a person that is responsible for the transmission or hosting that content in compliance with subsection 41.25(2). The person that you are providing notice to can reserve the right to charge a fee to deliver the notice to its customer/user. In other words, if you see someone infringing your work, be prepared to pay.
This could really create a problem for copyright holders. Currently in the United States, there have been many known lawsuits stemming from the RIAA. In a number of cases, identities were incorrect, and some people who had no idea what file sharing was ended up being hit with subpoenas.
There is also the issue of proxy servers, which can mask an infringers real IP address. Notices could end up going to ISP’s that have no relation to the actual infringer. In the case of a proxy server, if they are located outside of Canada, then they can end up being exempt from any provision in C-32. I know personally, I have a proxy that I may set up a VPN to from time to time for private encrypted wireless on public networks. The proxy is in the US. Should I infringe and the copyright holder finds the file I’m sharing, a notice to the ISP based on the IP of the proxy would result in a US ISP, which is responsible under US law and not Canadian. Likewise with any other jurisdiction.
On the other hand, the fee that a provider might charge to the copyright holder for submitting notices could in-fact improve the efficiency of the justice system for handling copyright cases. A holder may be forced a little extra to think about whether they are truly seeing copyright infringement, or whether the infringement falls under any of the exemptions in the bill or act, or if it falls under Fair Dealing.
As an aside, the copyright holder is causing the service provider to take on extra workload to handle the processing and delivery of notices to their clients. As a matter of fact, there may be instances where handling these claims may require additional manpower, in which case, it may be in the service providers best interest to be allowed to charge that fee to handle the request. In the mean time though, it would seem that that fee may be legally nil at the moment due to subsection 41.26(2):
The Minister may, by regulation, fix the maximum fee that a person may charge for performing his or her obligations under subsection (1). If no maximum is fixed by regulation, the person may not charge any amount under that subsection.
So if the Minister doesn’t bother setting a minimum or maximum as part of future regulation, or regulation to be enacted on the signing of this bill for that matter, then the whole issue of a fee is a moot point anyways. I would personally feel encouraged if there was a regulation enacted on the bills signing regarding this fee since I do feel that it is the right way to go about this, but it would be nice to see an example of what this regulation would look like.
The one main thing that I would like to get a better understanding on is why subsection 41.26(2) exists for the fees that can be charged by a service provider, however, if the service provider doesn’t fulfil his duties set forth in subsection 41.26(1), then according to subsection 41.26(3) and 41.26(4), there is a firm minimum and maximum fine, and the Governor in Council can change that by regulation. I understand that one is a fee and the other is a fine. My best guess would be that since the fee is being dolled out by private enterprise, there needs to be more fleshed out regulation to handle it versus fines that the government issues.
The last point that I want to bring up is the last point I had talked about regarding DMCA 512. Misrepresentations. There is nothing in the bill that I could point directly to that covers any of this. It is important since there is provisions in the bill that deal with the takedown of copyright content by a provider, like a YouTube. Here is an example, starting with subsection 41.27(1):
In any proceedings for infringement of copyright, the owner of the copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of an information location tool that is found to have infringed copyright by making a reproduction of the work or other subject-matter or by communicating that reproduction to the public by telecommunication.
Subsection 41.27(5) goes on to define an “information location tool” as the following:
In this section, “information location tool” means any tool that makes it possible to locate information that is available through the Internet or another digital network.
This would normally seem like even general search engines would fall within this category, but this is not necessarily the case as there are additional specifications defined within subsection 41.27(2). 41.27 essentially governs that takedown notice.
What needs to be explicit is what may happen should a takedown notice be submitted while misrepresenting the claim. Likewise, any counter notice. It may be a moot point since litigation for these kinds of issues in Canada isn’t as readily apparent as it is in the United States, but the fact that it leaves that avenue open is subject to discussion. A fee on filing notices may help the issue of fraudulent takedown notices, but it won’t eliminate it, and proper legislation as a backup should be in place.
My personal proposal would go back to the fine route. If the copyright holder decides to issue a takedown claim to a service provider, and the provider complies, then the alleged infringer could have the opportunity within 6 months to file a counter-notification to the copyright holder through the service provider. If the copyright holder decides to settle it in court, the party that loses judgement is subject to a federal fine of misrepresenting their claim. It may not be that simple, but it would be a good start.
Next time around, I will talk a bit about the provisions in place in regards to the circumvention of copy protection measures.
The contents of bill C-32 can be procured here.
