European Commission Report Demands Canada Implement Internet Censorship

It seems that multinational corporations are now relying on Europe to pressure Canada into implementing internet censorship. Signs of this come from a recent report.

A report entitled “Report on the protection and enforcement of intellectual property rights in third countries” by the European commission was published in the later half of December. The European Commission has a register for reports and an entry can be found in their index. Unfortunately, the report is not currently available as the search results will turn up an error saying that the document no longer exists. While it is possible to obtain a copy of the document, you need to be a European citizen. Unfortunately, no one on the Freezenet staff is European at this time. As such, the only available source at this time is a PDF posted by TorrentFreak.

The report reads pretty much like the much-discredited US’s Special 301 report. In 2018, the already widely discredited report was once again slammed after including Canada once again for no real credible reason. Already, the report was blasted by many because it previously demanded that Guatemala stop being poor and enforce copyright laws that the US sees fit.

So, it ultimately looks like a repackaged European edition of the Special 301 report and many of the demands are pretty much the same. Here’s an excerpt from page 48:

The Canadian IPR system still features certain shortcomings. Despite recent positive developments, a number of issues remain to be addressed, in particular in copyright and related rights as well as in enforcement.

Broad exceptions in copyright law are applied in a way that appears to be detrimental to right holders. EU stakeholders are particularly concerned about the fair dealing exception for educational purposes and the exception for non-commercial user-generated content. Moreover, EU stakeholders are also concerned that Canada does not grant a remuneration right to phonogram producers and performers for a number of uses of their music in broadcasting and public performance.

I’ve personally been a long time observer of copyright and these demands actually have much more significance that you’d might think on first blush. Back in 2012, the then Stephen Harper administration passed copyright reform laws. That development is generally seen as the closure of a long-running heated debate about copyright laws which concluded with a stalemate conclusion.

Essentially, the Conservative party of the day saw significant pressure, lobbying, and massive demonstrations on both sides. Knowing that their grip on power was loosening, picking a side on the debate was ultimately a no win situation. If the government chose to side with multinational corporations, they appease the donor class and are able to keep the funding levels up, however, they would lose large swaths of public support. On the other hand, if they sided with Canadians on the issue, they would retain some of that vote, but lose a lot of foreign money influencing politics. So, a middle of the road approach wound up being the only move the party could come up with.

In the ultimate conclusion, they chose to implement laws that allow DRM to override fair dealing. This, of course, upset Canadians who were seeing their laws being DMCA-ifying as originally feared. At the same time, they created a “remix” exception for YouTubers and educators where small excerpts can be used as part of the remix culture that was forming at the time. This, of course, infuriated the copyright extremists and corporate interests, but also permitted users to actually use other works to create original works. It was how the Conservatives could find compromise. As one minister commented, everyone has a little water in their wine.

The demands as published by the European commission basically urges Canada to eliminate all compromise for Canadians and finish taking the other side. This would undo all the stability in the copyright debate has managed to obtain in the years since and plunge Canada into another massive fight over copyright laws.

The demands then continue with this:

Stakeholders indicate that the “notice and notice” regime for online copyright infringements, which came into effect in January 2015, still needs to be supplemented by a “notice and take down” requirement, as well as by other measures to encourage all players to address online infringements in an effective way. There is currently no requirement for the internet service provider (ISP) or the user to take down infringing material and the only way to enforce a takedown is via the courts.

Canada’s notice-and-notice system is also a part of the aforementioned compromise. In the months leading up to the unveiling of the notice-and-notice system and the months since, Canadian politicians labelled the notice-and-notice system as a “made in Canada approach”. Hearing the fears and horror stories of America’s notice-and-takedown system, Canadian politicians knew that implementing a notice-and-takedown system would be seen as a complete sell-out to foreign interests. Few in Canada that weren’t influenced by major foreign corporate interests wanted to see the American style copyright laws be implemented in Canada.

To this day, Canadian politicians are highly critical of the notice-and-takedown system. This is because many see the system for what it is: a system in which multinational corporations can sue teenagers for millions of dollars for the trivial offence of non-commercial copyright infringement. It’s a big reason why notice-and-notice was implemented in the first place. They didn’t want foreign record labels, developers, and movie studios playing prosecution, judge, and jury on issues like this. At the same time, they knew that these interests would never relent unless they can at least have the power to ask Canadians to stop their infringing activity.

Thus, Canada got a notice-and-notice system. If major interests were seeing massive copyright infringement, they are free to ask people to stop. While some were skeptical that such a system would work, the system proved to be overwhelmingly successful. Canadian who received these notices overwhelmingly tend to stop. Repeat infringers could be fined a few hundred dollars if they chose to ignore the warnings. It’s basically the equivalent of a speeding ticket. After all, there is a huge difference between non-commercial infringement and commercial infringement. If this truly is about enforcement, then this would actually be a very satisfactory system.

Unfortunately, for multi-national corporations, this was never really about enforcement. It was about turning enforcement into a massive multi-million dollar money-making scheme. The lack of distinguishing between commercial infringement and non-commercial infringement is the ultimate point because one could make millions fining ordinary Canadians hundreds of thousands to millions per infringement. This is thanks to the existence of statutory damages in Canada. So, ever since then, the major record labels and movie studios have been demanding Canada to repeal the notice-and-notice system in favour of the American style notice-and-takedown system.

Ultimately, such a call as seen in the report would face an uphill battle simply because any politician seriously looking at the issue will see precisely the points we are highlighting now.

The “report” further makes these claims:

EU stakeholders also report that Canada remains a host to websites providing access to pirated content. In cases where the identity of the operator is unknown, due to the use of services enabling anonymous registration of website domains, right holders seem not to be in a position to apply for an injunction aimed at preventing a continuation of a copyright infringement (e.g. website blocking).

This point actually conflates two different topics and makes them one and the same when they are really not. The issues actually mentioned above are the ability to take down websites hosted in Canada and the ability to block websites.

Already, major corporate interests can go through the Canadian courts and demand the identity of the website operator. The fact that it’s not as easy as a simple whois lookup is pretty much irrelevant. After all, in order to get an injunction, that will have to be handled through the courts. One might argue that this would costs companies more money in court fees, but the reality is that these same corporations can elect to recoup those costs by demanding that the alleged website operator, if found guilty, can be ordered to pay for those costs. If the owner is not guilty, then such costs should act as a penalty for attempting to prosecute an innocent person.

A major stumbling block is the fact that privacy protections are put in place for domain name owners. There is actually very good reasons why such protection are in place: spam and harassment. Spammers are constantly trolling any and every database they can get their hands on to send their illicit messages and malware around. A DNS registry that discloses recipients and contact information would be handing these spammers a goldmine for all operators (whether you are creating a gardening blog, news site, or anything else for that matter).

Harassment is another major concern with the idea of disclosing the names and contact details of all operators. The Internet, as almost everyone knows, is host to a wide range of opinions on any topic one can imagine. Not everyone will agree with those thoughts and ideas. This generally gives rise to difference of opinion and conflict. The more readily available contact details are made available on a mandatory basis, the more vulnerable operators will wind up being.

In fact, this availability was the subject of a lawsuit currently occurring in the US. A copyright troll was issuing DMCA notices against YouTubers over content the troll never owned. If YouTubers failed to comply with the extortion of paying money to have a copyright strike lifted, the troll would then take the address of the YouTuber in the DMCA system and SWAT them as an additional pressure tactic to get them to fork over the cash. YouTube responded by suing the troll for those actions. Ultimately, this shows how such public information can be abused.

Now, moving over to the other completely unrelated issue of mass Internet censorship. This is a push to get ISPs to start blocking websites that operate in other countries. Major multinational corporations in cooperation with a few media giants in Canada tried pushing the Canadian regulator to implement censorship blacklists. That demand was rejected. Failing this, international corporate interests then tried to revive the issue by lobbying the Canadian government. When the issue was looked at by the Industry Ministry, it clashed with what many call the one-sided report of the Heritage Ministry which recommended Canada implement mass Internet censorship. The clash saw the issue stall.

Others have pointed out that the gridlock was finally broken through when a Canadian judge went rogue and ruled in the GoldTV case that the services must be blocked. The judgment relied heavily on UK law and UK caselaw instead of Canadian law and caselaw. As such, while major ISPs implemented the ruling, the ruling is being appealed by TekSavvy for the obvious glaring legal holes in the judgment. So, while Internet censorship has been revived from the dead, there is plenty of reason to hope that the appeal will drive a stake into the heart of this threat, fill the mouth with garlic, encase it in concrete and rebury it into the ground where it belongs.

Finally, the report makes this point:

Weaknesses in enforcement mechanisms including adequate authority for customs authorities to seize and destroy counterfeit and pirated goods at the border continue to be of concern for right holders. While EU stakeholders’ experience with Canadian civil courts has been more positive, they report that customs authorities often lack resources to effectively tackle IPR infringements at the border. Police forces are reportedly rather passive in taking on criminal cases.

What is particularly odd is that the report itself admits that the courts are giving them everything they want. So, when enforcement takes place, they get their convictions and destruction of illegal goods.

The report (shamefully) suggests that police are simply reluctant to do their jobs. This simply ignores the reality of what happens at the border these days. There are much larger concerns with seizing contraband at the borders. The biggest concern is arguably the Fentanyl crises. In a report last month, border officials enough of the opioid to avert 20 million deaths in the last two years. From the report:

Agents made 270 interceptions during this two-year period, the Canada Border Service Agency (CBSA) briefing notes show. It resulted in approximately 39.4 kilograms of fentanyl and fentanyl analogues seized, a group of synthetic opioids that includes carfentanil.

The Royal Canadian Mounted Police state two milligrams of pure fentanyl — “the size of about two grains of salt” — can be a lethal dose for most adults. A kilogram of fentanyl “is enough to potentially kill 500,000 people by overdose,” according to the U.S. Department of Justice.

The briefing note, prepared for the CBSA president’s office, misstated the potency of the seized fentanyl and fentanyl analogues by approximately ten times. “According to Health Canada data related to the potency of fentanyl this equates to almost 2 [million] potential overdoses,” it stated, under a section labelled “speaking points.”

With the opioid coming from other countries, there is little reason to question why this is being labelled a crises. Health Canada estimates that 13,900 people have died from opioid overdosed between 2016 and 2019. That largely shows what wasn’t stopped from entering the illegal drug market.

Another major problem is the importation of illegal firearms. Some suggest that gun violence continues to be a major problem in Canada. The Government of Canada points out that the issue of illegal firearms is a major point of concern. From The Canadian government:

Border services officers (BSOs) play a crucial role as Canada’s first line of defence from illegal weapons, contraband and individuals who may pose a threat to the country. Firearms and weapons are high-risk commodities and the Canada Border Services Agency (CBSA) is committed to preventing firearms from illegally entering Canada at the border.

From January 1, 2019 until August 30, 2019, 231 firearms were seized at various ports of entry throughout CBSA’s Southern Ontario Region. The CBSA is pleased to highlight some examples of multiple firearm seizures that recently occurred. Each firearm seized at the border contributes to making communities across the country safer and ensures that these weapons remain off Canadian streets.

That report is in reference to a single province, not the entire country.

An additional report suggests that gun smuggling is taking more resources to stop. From the CBC:

Police are scrambling to keep pace with criminals who are coming up with creative ways to supply Canada’s black market with firearms.

“Gun violence is getting worse, there is more access to firearms,” Toronto Police Chief Mark Saunders told CBC News. “And so we have to look at the problem from a bigger perspective.”

The number of firearms confiscated at the Canada-U.S. border has fluctuated over the years — 751 were seized during the 2017-18 fiscal year, according to the Canada Border Services Agency.

They are hidden in gas tanks, the trunks of cars, in luggage, or on someone’s body. In one remarkable instance involving Montrealer Alexis Vlachos, firearms were smuggled through a public library that straddles the border with the U.S.

So, the comments in the report suggests it was written by someone who clearly has no idea what is going on at the border or doesn’t really care to know. If multi-national corporate interests are unhappy that a bootleg copy of a Justin Bieber album isn’t a high priority for police, maybe a good starting point is asking what is a priority. It’s hard to argue that a bootleg copy of Call of Duty should be a top priority compared to a kilogram of fentanyl or crates of weapons and ammo illegally entering the country. At best, such a demand is highly insensitive. If anything, the person behind the European report suggesting that border security should be paying more attention to copyright infringement and less on other issues might need a slap up the back of the head if anything.

The hope is obviously that Canada doesn’t pay too much heed to these comments. As a matter of fact, Canadian officials have plenty of reasons to ignore such comments in the first place given both the history of the copyright debate, what Canadians learned from it, why laws were passed the way they are, and the reality of border security today.

Drew Wilson on Twitter: @icecube85 and Facebook.

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