Bell wants to create piracy blacklist through NAFTA

Bell Canada is seeking to establish significant changes to Canada’s procedures for dealing with digital media piracy through NAFTA negotiations.

Canada’s second-largest carrier spoke at a meeting of the Standing Committee on International Trade (CIIT) on September 20th, 2017, to suggest creating an independent agency under Canada’s telecom watchdog (the CRTC) that would blacklist “egregious piracy sites” all Canadian internet service providers would be required to block, as a solution to Canada’s “piracy problem.”

“In our view, that’s the only way to stop it,” said Bell’s senior vice-president of regulatory affairs Rob Malcolmson told federal politicians, as a public transcript of the meeting reveals.

Rogers disagrees with Bell’s approach

Rogers’ vice-president of regulatory Pam Dinsmore — who was also present at the meeting — disagreed with Malcolmson’s suggestion, preferring to stay away from the subject until the upcoming federal review of the Copyright Modernization Act, which is set to begin in two months.

“Rather than dealing with it as a one-off in this exchange while this negotiation is moving very quickly and even the negotiators will tell you that they don’t really have a lot of time to think between rounds, there’ll be lots of time to consider these sorts of options in our own domestic forum and we think that’s where this discussion belongs,” said Dinsmore.

“In our view, that’s the only way to stop it,” said Malclmson

In this opinion, Dinsmore is supported by digital rights advocacy group OpenMedia and Michael Geist, an internet law expert and University of Ottawa law professor.

“Incredibly, Bell’s proposal involves no court oversight, hoping to create a mandatory system for blocking websites that excludes the due process that comes from judicial review (raising obvious Charter of Rights and Freedoms concerns),” Geist wrote in a recent blog post on his website.

OpenMedia’s Marie Aspiazu told MobileSyrup she believes using an international trade deal to make such a suggestion is highly unusual.

“This is not the first time Bell has done lobbying that goes overboard,” said Aspiazu, “But in terms of trying to influence domestic policy through an international trade agreement, I would say it is unprecedented.”

Tougher criminal sanctions on copyright infringement

Both Aspiazu and Geist also noted Bell’s comments about introducing further criminal liability for commercial copyright infringement, as a result of Malcolmson’s that “Canada should also create a criminal provision for any infringement of copyright, including facilitating and enabling piracy where it is undertaken for commercial purpose.”

In his blog, Geist writes that, since Canada already has a provision to target sites that enable infringement, “Bell’s goal is to dramatically expand the prospect of criminal liability for infringement by opening the door to criminal sanction for all commercial copyright infringement.”

He adds that these controls could conceivably spill over into non-commercial infringement — a prominent concern for Aspiazu and OpenMedia.

“Though we don’t have the specifics, we might see something similar to [the Trans-Pacific Partnership] where you have the definition of commercial purpose applied to non-commercial everyday activities,” said Aspiazu.

“In terms of trying to influence domestic policy through an international trade agreement, I would say it is unprecedented,” said Aspiazu

“For example, if you uploaded a video of holiday photos with a copyrighted song, you could face criminal repercussions.”

She said she’s worried that this sort of plan would lead to people self-censoring online.

Meanwhile, Rogers mainly expressed support for Canada’s current ‘notice-and-notice’ system used for copyright enforcement.

The notice-and-notice approach requires internet service providers to forward any infringement notice from copyright owners to its subscribers. The notice-and-notice provisions are merely a warning that a copyright infringement may have taken place, and are not formal charges or legal sentencing.

When MobileSyrup contacted the CRTC about Bell’s suggested plan, the commission replied that it had no comment on the matter. Rogers and Bell both indicated they had no further comment beyond the statements of Malcolmson and Dinsmore.

MobileSyrup has also reached out for comment to Global Affairs Canada and the Standing Committee on International Trade and will update this story if comment is provided.

Canada, Mexico and the United States have just wrapped up the third round of NAFTA negotiations, with Foreign Affairs Minister Chrystia Freeland stating that “meaningful advances” have been made in telecommunications and digital trade.

The next round of NAFTA negotiations will take place in Washington, D.C. from October 11th to 15th, 2017, with a planned deadline of late December 2017.