The agreement is colloquially known as the six-strikes-and-we’ll-see approach because the higher-level deterrents bandied upon in public relations campaigns are seldom used in practice. Yet, online communication rights supporters lambasted even this limited role, and worry that the measures will be steadily ratcheted upwards under relentless pressure from the copyright industries.
The notice and notice regime contemplated by the Copyright Modernization Act is stricter than the U.S. approach, but not as punishing as the “three strikes” measures put into place in France, the U.K., New Zealand and Ireland, among others. C-11 is right to reject the three-strikes approach pushed by the recorded music industries. This also comports well with a recent UN Internet & Human Rights report that emphatically states that “cutting-off users from Internet access … on the grounds of violating intellectual property rights law … is disproportionate and … a violation of … the International Covenant on Civil and Political Rights.”
Still, however, C-11 is problematic because it takes voluntary measures arrived at among a half-dozen or so incumbent telecom and cable companies and applies them to the rest of the 400-500 small ISPs that exist across Canada. The new law will force them to assume roles that most have rejected on privacy and freedom of expression grounds.
Second, the new bill mandates that all ISPs retain data on those targeted for notices for six months and to disclose the identity of Internet subscribers under court order. This is a new element introduced by C-11 over and above the current voluntary arrangements. The goal should be to minimize, rather to increase, the collection and retention of subscriber data by digital intermediaries.
Third, as the Chilling Effects Clearinghouse and the Electronic Frontier Foundation’s Take-Down Hall of Shame illustrate, U.S. copyright claimants frequently launch claims based on broader assertions than the law permits. The chilling effect on free expression is considerable since many people simply stop whatever they were doing when sent a notice of alleged copyright infringement rather than wander on to uncertain terrain.
Copyright holders’ opposition to new user rights will also likely result in them working very hard to define these rights as narrowly as possible. A legally mandated notice and notice regime will serve them well.
C-11 will not turn ISPs and other digital intermediaries into gatekeepers on its own. Yet, the last thing we need is to give Canada’s vertically-integrated telecom-media-Internet conglomerates — Bell, Shaw, Rogers, QMI, Cogeco — more reasons to exert greater control over information flowing through their networks. They already discriminate in favour of their own services, and use deep-packet inspection technologies at very high levels relative to global standards (see here). Extending the notice and notice regime — plus new data retention and disclosure mechanisms — to all ISPs will only bolster the steady drift to network-centric models of control and perpetual copyright.
Seen in this context, digital locks are important but the possibility that notice and notice will become the law of the land deserves far more scrutiny than it has thus far seen.
