The Canadian Bar Association appeared before the Standing Committee on Industry, Science and Technology earlier this week as part of the nearly-concluded copyright review. The CBA submitted an odd brief that focused on a mix of issues, including anti-counterfeiting, notice-and-notice, and artists’ resale rights. The notice-and-notice comments captured the attention of at least one MP, who was left puzzled by the position.

The CBA’s brief contains no evidence on the efficacy of either notice-and-notice or notice-and-takedown, limiting its analysis to how the systems are “viewed.” In doing so, it ignores evidence that notice-and-notice has been effective in educating the public on copyright. More notably, it acknowledges that “a notice-and-takedown regime can result in internet service providers removing content following an allegation, without evidence or warning to the alleged infringer.” While that might sound like a good reason to reject the system – removing content without warning or evidence ought to be considered problematic by the bar association – it recommends adopting the approach primarily on the grounds that it is available in the United States.

That did not strike Liberal MP Celina Caesar-Chavannes as a particularly compelling reason and the CBA, represented by Steven Seiferling, responded with questions of his own:

Mrs. Celina Caesar-Chavannes: To the Canadian Bar Association, your recommendation is to
consider implementation of the notice and takedown system, if I’m reading this correctly.
In the written statement you’ve provided—you say that neither system—notice and notice or notice
and takedown—is perfect. You go on to say that a notice and takedown regime can result in Internet
service providers removing content following an allegation without evidence or warning to the
alleged infringer. Why are you recommending notice and takedown, and not to improve the effectiveness of notice and notice to redress online infringement?

Mr. Steven Seiferling: That’s an interesting question. I would turn it back to you and say what do
you mean by improving the effectiveness of notice and notice? So, are you proposing something like I heard a comment earlier saying, the international treaties govern what we can do with people who are posting or infringing copyright from overseas. I don’t know of an international treaty that lets me enforce against somebody who is overseas. I don’t know where you’re going with improving the notice and notice –

Mrs. Celina Caesar-Chavannes: I’m just asking a question.

Mr. Steven Seiferling: It’s an interesting question, but I think when it comes to…. Yes, we
acknowledge that neither system is perfect. You’re never going to find a perfect system. You’re
always striving for perfection. The more effective system of the two is going to be notice and takedown, because it gives the rights holders the strongest protection they can have against the use of infringing content online, and potentially problematic infringing content online.

While it seems very unlikely the committee will recommend adoption of a notice-and-takedown approach given the government’s commitment to notice-and-notice in Bill C-86 (which addresses some of the abuses) and the CUSMA, the CBA missed a valuable opportunity to raise important copyright reform issues by instead providing an evidence-free recommendation for a system that it plainly admitted raised policy concerns.