Telus Voices Opinion on Copyright Reform

As long as there has been intellectual property, Copyright has always been following close behind. When ‘this internet thing’ came around, it changed the face of the intellectual landscape forever.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Of course, this change wasn’t without controversy and differing opinions. The Copyright debate, at least in Canada, has taken another interesting turn recently. Telus, one of Canada’s largest ISPs (Internet Service Providers) has released a letter (PDF, hosted by Michael Geist) on the topic of the copyright debate in Canada.

In the letter, addressed to Bev Oda (Canada’s Minister of Heritage), Telus states, “TELUS’ three top priorities for the forthcoming amendments are: establishment of a modernized and flexible “fair use” approach to copyright exceptions; confirmation that ISPs are not liable for copyright infringements by their customers; and codification of the current voluntary “Notice and Notice” regime, with reasonable ISP compensation.”

A couple of interesting notes on where Canada stands officially on the copyright debate today. Amongst ISPs, Canada has an unofficial “Notice and Notice” regime. This regime is basically where a copyright holder (typically a record label or movie company) finds out that an internet user has ‘violated one of more of its copyrights.’ They then use some sort of method to obtain a users IP (Internet Protocol) address. Then through some system, they determine which ISP that user is under and send a cease and desist notice to that ISP because the copyright holder cannot get personal information to send the notice directly to the user. The ISP then, in turn, sends a notice to the user stating that they have received a complaint from the complaining party and requests that the content be removed from the shared point that is connected to the detected network. As evidence, they sometimes also send a timestamp and a copy of the original complaint.

This informal regime isn’t just for copyrighted content. It is known that the regime is also in place for content that shows depictions of pedophilia and other content that are likely against Canadian law.

The regime has also been favourable for some parties over a regime in the United States known as a “notice and takedown” where a copyright holder can also litigate the alleged copyright infringer (litigation which almost always results in either the case being dropped or a settlement of a four figure dollar value) Some have questioned the accuracy of the record industries lawsuits since stories like the RIAA (Recording Industry Association of America) suing the dead started showing up shortly after the litigation campaign began.

Another interesting note is that Telus referred to “fair use.” Fair use is something set in place in the United States, but not in Canada. Canada has a similar set of laws known as “Fair Dealings” which has its differences. Fair Dealings basically allows a Canadian to criticise or use a portion of a copyrighted work for non-commercial purposes (often used in the educational community.) “Fair use” came into being over the Betamax tape. It allows a United States citizen to record something (like a TV signal or a music album) for non commercial purposes (like backing the data up.) Some say that “Fair Use” offers more to the consumer than “Fair Dealings.”

The Telus letter goes on to say, “TELUS also considers it a priority that the Government ensure that the WIPO Broadcasting Treaty, if ultimately passed, contains a provision permitting Parties to opt out of the Treaty’s proposed new retransmission right.”

Telus then goes into detail of what they want to see. “TELUS joins the growing number of groups representing both copyright creators and users in urging the Government to replace the narrow and inflexible fair dealing provisions in the current Copyright Act with a “living” Fair Use model. […] In order for Canada to continue to foster innovation and play a leading role in the development and usage of world class communication technologies, our copyright system must be flexible enough to adapt in a timely manner to the rapidly changing technical and entertainment environment we now face […] In particular, the Government should ensure Canadians are able to use new technologies to fully enjoy copyrighted material they have legally obtained or accessed in a manner that does no real measurable harm to copyright owners’ legitimate interests.”

As mentioned in a previous article, several studies were conducted on file-sharing and its relationship with the industry’s revenue. Arguably, they all show that file-sharing has helped the recording industry grow and that losses the industry faced had nothing to do with file-sharing.

Telus also focuses on time-shifting and space-shifting for non-commercial use as well, arguing for it to be legalised.

The letter expands on the issue of the “Notice and Notice” regime. “This made-in-Canada regime has proven to be the most practically effective approach to addressing the vast majority of online copyright infringing activity (i.e. through P2P file-sharing.) In addition, appropriate, reasonable ISP compensation for administering the Notice and Notice regime will impart important and necessary discipline on the system, thereby ensuring its continued effectiveness and success by discouraging the voluminous level of automated, illegitimate and time-wasting claims which US ISPs have complained about for some time and which Canadian ISPs are increasingly facing.”

This idea of compensation for keeping a healthy notice and notice regime was voiced by Telus ever since the CRIA (Canadian Recording Industry Association) lost the discovery case against 29 alleged copyright infringers. It was mentioned in the Telus court documents that was recently reported on here. This appears to be a clearer vision for what Telus had in mind when they are talking about compensation.

Another interesting point Telus offered was its view on the WIPO (World Intellectual Property Organization) Broadcasting Treaty. “TELUS joins Canada’s other major BDUs in asserting that the creation of a new broadcasting retransmission right as contemplated in the proposed WIPO Broadcasting treaty, which could result in the outflow of over half a billion dollars to the United States, would have very serious and far-reaching negative consequences for the Canadian broadcasting system and for Canadian television consumers. [..]TELUS supports the Government’s stated position that, should the Treaty be passed, it contain a clause permitting any Party to opt out of implementation the proposed new retransmission right.”

So what if this provision to allow parties to opt out doesn’t occur? Telus said, “In the event the Treaty is passed without containing such an opt-out clause, TELUS urges the Government not to ratify it.”

Quite clearly, Telus has voiced their opinion on the Copyright debate. They are in an interesting position because they are in an important position as well. Still, no one knows what the Copyright reform bill will look like, but it is evident that several different parties have voiced their opinion on the issues.

Drew Wilson on Twitter: @icecube85 and Google+.

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