Appeared in the Toronto Star on August 8, 2016 as Piracy on Agenda in Copyright Law Review
The Canadian government plans to review the state of copyright law next year, but a recent government-commissioned study indicates that fighting piracy is a low priority for rights holders. They prefer to focus on their efforts on generating revenues from legitimate websites and services.
Piracy is likely to be a major issue in the 2017 review, with some groups sure to demand legislative reforms and increased resources for law enforcement initiatives. Canada enacted several anti-piracy measures in 2012, including creating a new rule that makes it easier for rights holders to sue websites or services that “enable” copyright infringement. The so-called enabler provision – the first of its kind anywhere in the world – has been used to shut down Canadian-based piracy sites.
In recent years, some stakeholders have emphasized the benefits of a “follow-the-money” strategy that focuses on stopping piracy sites by disabling access to payment intermediaries, demoting the sites in search results, and reducing their online advertising revenues. In response, the Department of Canadian Heritage commissioned a major study by Circum Network Inc. last year on the follow-the-money approach and the views of Canadian businesses. The study, which was obtained under the Access to Information Act has not been publicly released.
Canadian Heritage sent letters to various stakeholders encouraging them to participate in the study, noting that it would help identify practices aimed at reducing or discouraging commercial-scale copyright infringement. While the department advised that the study was not necessarily indicative of future policy directions, the contract with Circum specifically called for recommendations to assist in future work on copyright piracy deterrence.
The final report includes few recommendations. Circum found that follow-the-money strategies have at best a mixed record of success. The problems include difficulty identifying commercial-scale copyright infringement websites (suspect sites often have both infringing and non-infringing content) and the continuing popularity of online advertising among major brands who have prioritized reaching large audiences over stopping piracy websites.
From a Canadian perspective, Circum did not find much enthusiasm among stakeholders for investing in anti-piracy activities. The study states that “Canadian representatives of rights holders consulted as part of this study tended not to give online piracy fighting a high priority. While they condemn unauthorized access to intellectual property and while some rights holders indicated actively reacting, they generally considered that their scarce resources are better invested in other battles and counted on global organizations to pursue the fight.”
Circum also noted diverging interests among rights holders themselves, with composers, authors, performers, actors, producers, publishers, and labels often adopting different approaches. Moreover, the study found that Canadian stakeholders seem far more interested in obtaining revenues from legitimate sources using works or offering legal marketplace alternatives.
There was even disagreement among those rights holders that supported government action. While some wanted law enforcement to escalate the piracy issue, others preferred to focus primarily on education efforts.
None of this should be taken to mean that Canadian businesses (or Canadians for that matter) support piracy. The 2012 copyright law rightly focused on commercial-scale piracy by enacting new legislative tools that can be used to combat websites and services that profit from the work of others without appropriate permission or authorization. Those reforms garnered widespread support.
However, the Circum study offers further evidence that for many creators, obscurity remains a far bigger threat than piracy. The message for the two ministers responsible for copyright – Canadian Heritage minister Mélanie Joly and Innovation, Science and Economic Development minister Navdeep Bains – is that with so much choice and competition, success is unlikely to come from yet another package of anti-piracy legal reforms. Instead, the study suggests that creators are ready to embrace the digital marketplace and would prefer to focus their energies on developing convenient, well-priced, legal services.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
