Worsening War on the Internet? Internet Censorship Floated in Copyright Consultation

Efforts are continuing to institute Internet censorship in Canada in order to curb copyright infringement.

The Canadian government’s war on the open Internet is still top of mind. While the Speech from the Throne suggests that link taxes may be falling by the wayside as far as importance is concerned, speech regulation (ala Bill C-10) and the online harms proposal is continuing to be a go. With one more week left in this years current session, it is looking increasingly likely that such efforts are going to be pushed to next year.

While there is considerable concern over those two remaining prongs in the Canadian governments war on the open Internet, it may be joined by a nasty surprise coming out of nowhere. That just so happens to be Internet censorship for copyright reasons. Apparently, a copyright consultation was held with the likes of Bell Media pushing for Internet censorship. From Michael Geist:

My submission in the intermediary liability consultation focuses on two main points. First, website blocking is a disproportionate, ineffective and undesirable response to copyright infringement. Recent Canadian court decisions that have approved of the practice raise significant concerns for freedom of expression and net neutrality. If adopted, it must be a measure of last resort featuring robust safeguards to ensure full due process and to prevent over-blocking.

Second, lowering the knowledge standard for inputting intermediary liability is undesirable. Current safe harbour provisions help to preserve net neutrality and promote freedom of expression by eliminating any incentive for platforms to pre-emptively remove content in the interest of avoiding liability. Were reforms made such that intermediaries, such as ISPs, attract liability upon receiving notice of alleged infringement, copyright owners would be incentivized to make even weak or frivolous allegations in order to have questionable content removed.

While it will take some time to fully review all the submissions, a quick glance reveals few surprises. Bell is still leading the charge for website blocking, Music Canada still wants more aggressive takedown rules, copyright collectives still want to roll-back user rights, and the education, library and consumer groups are still defending user rights. This process bears commenting as it has all the hallmarks of a copyright policy version of the movie Groundhog Day, in which the same day repeats itself over and over again. The same is sadly true for copyright policy, where copyright lobby groups seeking to limit fair dealing or mandate website blocking use the same tactics again and again in the hope of getting a different outcome.

The reality is that these issues have been canvassed repeatedly by politicians, courts, and regulators over the past decade. Successive Canadian governments conducted extensive copyright consultations in 2010 (leading to the 2012 reforms to the law) and again in 2018. The Supreme Court of Canada has heard multiple cases involving fair dealing (most recently in the decisive Access Copyright v. York University case) and left no doubt that it is a users’ right that should be interpreted in a broad and liberal manner. The CRTC conducted a process on website blocking and rejected the application on jurisdictional grounds. The 2018 copyright act review provided a clear roadmap if there is an appetite for reform: the expansion of fair dealing for innovative purposes such as text and data mining, new exceptions to the anti-circumvention provisions, and the elimination of crown copyright.

This consultation in bad faith is becoming increasingly the hallmark of Canadian government. An outcome is pre-determined by corporate lobbyists and consultations repeatedly occur in an effort to get the desired result as opposed to an open and honest response from the public at large. This was a major theme we covered in our previous podcast where thoughtful responses to the online harms consultation were seemingly getting ignored.

The sad part in all of this is that this is far from the first time that Internet censorship to combat copyright infringement is something that has been pushed before. A coalition of special interest groups led by Bell demanded that the Canadian regulator, the CRTC, institute mandatory Internet censorship for websites accused of copyright infringement clear back in 2017. The push was ultimately rejected by the CRTC who cited the efforts of civil rights and digital rights organizations as a reason why the efforts failed.

The simple truth is that Internet censorship raises considerable problems with freedom of expression. Depending on the thresholds put in place, there is a risk of over-blocking of websites that have little to nothing to do with copyright infringement. In fact, there would also be market incentive to label those with dissenting thoughts as infringing and have them blacklisted across Canadian ISPs. Such copyright fraud and abuse wouldn’t even be anything new as we’ve seen repeatedly in the YouTube ecosystem.

What’s more is that site blocking has never been proven to be effective in deterring copyright infringement in the first place. With the existence of TOR, VPN’s, mirrors, and a whole lot more, those who want to download copyrighted material will always find ways of doing so. So, what this ultimately boils down to is an unproven theory that is very easily open to abuse.

Unfortunately, it’s nearly 2022 and some people are still pushing this as a viable solution. While it may not have featured prominently in various debates, the risk is that this could also be thrown into the governments war on the open Internet. As a result, we could be headed for the same exact debate we saw throughout 2016-2018. If this unworkable theory does manage to worm its way into a copyright reform bill, we can only hope it will get shot down again like it rightfully deserves to be.

Drew Wilson on Twitter: @icecube85 and Facebook.

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