Canadian Bar Association Pushes for Notice-and-Takedown in Canada

Notice-and-Takedown has been widely known as a disastrous policy in the US. Now, the Canadian Bar Association is saying Canada should follow suit.

Notice-and-Takedown is a major sore spot for America’s notorious Digital Millennium Copyright Act (DMCA). It has been a copyright policy that has been responsible for widespread abuse, fraud, and censorship for more than a decade across the Internet. For most observers, it either needs repealing altogether or heavy reform due to how fundamentally flawed the laws are.

Now, you might think that, given such a long and painful history such a policy has, that any country that still has a choice over whether or not to implement it would be highly skeptical of moving forward with a similar policy. At a copyright hearing, stunningly, that is what is being pushed for. Even more stunning is who is pushing for it: the Canadian Bar Association (CBA).

So, why it’s so particularly stunning requires a bit of background. Back in 2007, the organization spoke out about digital rights issues. At the time, they were seemingly on side with everyday Canadians on such matters and spoke out quite a bit against warrantless wiretapping (also known as “Lawful Access” at the time). Because of their stances and my ability to report on their stances, they garnered a lot of good publicity.

Fast forward to this year and now we are seeing what looks like a completely different tone from the organization. Michael Geist is highlighting an exchange at the hearing:

Mrs. Celina Caesar-Chavannes: To the Canadian Bar Association, your recommendation is to consider implementation of the notice and takedown system, if I’m reading this correctly. In the written statement you’ve provided—you say that neither system—notice and notice or notice and takedown—is perfect. You go on to say that a notice and takedown regime can result in Internet service providers removing content following an allegation without evidence or warning to the alleged infringer. Why are you recommending notice and takedown, and not to improve the effectiveness of notice and notice to redress online infringement?

Mr. Steven Seiferling: That’s an interesting question. I would turn it back to you and say what do
you mean by improving the effectiveness of notice and notice? So, are you proposing something like I heard a comment earlier saying, the international treaties govern what we can do with people who are posting or infringing copyright from overseas. I don’t know of an international treaty that lets me enforce against somebody who is overseas. I don’t know where you’re going with improving the notice and notice –

Mrs. Celina Caesar-Chavannes: I’m just asking a question.

Mr. Steven Seiferling: It’s an interesting question, but I think when it comes to…. Yes, we
acknowledge that neither system is perfect. You’re never going to find a perfect system. You’re
always striving for perfection. The more effective system of the two is going to be notice and takedown, because it gives the rights holders the strongest protection they can have against the use of infringing content online, and potentially problematic infringing content online.

Geist rightfully points out that, as things stand now, notice-and-notice has been a major Canadian success story. Probably the only major flaw was that the system can be abused by rightsholders sending demands for so-called “settlement” fees. Obviously, the system was never designed for something like that and, last month, the Canadian government moved to end that highly questionable practice.

So, in the end, you have a tail of two countries going on between Canada and the US. In Canada, you have a notice-and-notice system that has been largely a fair system. In turn, it is a respected system and the end result is accolades and success stories as far as the eye can see. In the US, you have the notice-and-takedown system which has been routinely criticized for effectively turning copyright into a reverse lottery system for those accused of infringement. It uses a highly flawed form of evidence in the form of an IP address and it allows the accused to effectively become judge, jury, and executioner. It’s been used for censorship purposes when political opinions are involved. The problems with it are simply endless.

So, obviously, if one were to say that notice-and-takedown is a necessary system, there needs to be strong evidence into why we should be scrapping what has been named a “made in Canada” approach. Judging by the exchange, the case being made boils down to “that’s what other people are using”. By a lot of accounts, implementing a system simply because someone else is using is going to be a very weak argument for notice-and-takedown. So, it’s not really surprising that some lawmakers are already wondering why these recommendations are being made in the first place.

Geist also makes the following observation:

The CBA’s brief contains no evidence on the efficacy of either notice-and-notice or notice-and-takedown, limiting its analysis to how the systems are “viewed.” In doing so, it ignores evidence that notice-and-notice has been effective in educating the public on copyright. More notably, it acknowledges that “a notice-and-takedown regime can result in internet service providers removing content following an allegation, without evidence or warning to the alleged infringer.” While that might sound like a good reason to reject the system – removing content without warning or evidence ought to be considered problematic by the bar association – it recommends adopting the approach primarily on the grounds that it is available in the United States.

So, the background evidence for notice-and-takedown is that it is “viewed” poorly. In and of itself, saying something is viewed poorly is a pretty weak argument. One could make that argument for pretty much anything. The legalization of marijuana is “viewed” as a poor choice. Legalizing marijuana is “viewed” as a very positive and progressive move forward for Canada. Building that pipeline is “viewed” as an essential step forward. The pipeline project is “viewed” as an environmental disaster. Safe injection sites is “viewed” as a way of making Canada safer. Safe injection sites are “viewed” as something that increases crime. The more you use such an argument, the more useless it becomes.

At the end of the day, it’s surprising to see the CBA change its stance so profoundly after so many years. Even more surprising is the surprisingly weak evidence it brings to the table. It’s unclear why this sudden change of heart and why such an approach was even thought up by an organization that prides itself on moving forward with effective laws. In any event, it should take a lot more than that to offer a compelling reason for Canada to abandon it’s made in Canada approach on copyright.

Drew Wilson on Twitter: @icecube85 and Google+.

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