IF YOU’RE AGAINST THINGS like theft and plagiarism, then support of the FairPlay Coalition is a no-brainer.
Over 25 companies, unions, associations and other groups have banded together to file an application to the CRTC to try to curb blatant content piracy in Canada. The group (a list of organizations who are often at each other’s throats) is calling themselves the FairPlay Canada Coalition and the application (to which Cartt.ca was granted early access) calls for the creation of the Independent Piracy Review Agency, an independent, third party organization with a strong mandate to protect both net neutrality as well as copyrighted works. It will be run by board members from across a broad spectrum of interests.
Put plainly, pirates – who disseminate content they don’t own – rob actual content creators (such as actors, directors, writers, set builders, makeup artists, etc.), broadcasters and BDUs (cable, IPTV and satellite carriers and their many employees), legitimate OTT streamers, movie theatres and others of income they have earned.
Such sites often put individual Canadians at risk, too, thanks to assorted malware often also distributed with “free” movies and TV shows. One of the most popular spots, Pirate Bay, was recently caught with its pants down as it was secretly commandeering users’ machines to mine cryptocurrency.
The coalition’s official application was filed with the CRTC today and we’d implore readers to actually read the thing and ignore what will be a likely backlash from a number of corners who’ll scream about net neutrality (they’re wrong). Anyone who works in the business, or any journalist or academic who covers or teaches about this sort of thing should stand behind it. It’s a sensible, open plan to try and choke off access to sites which are blatant copyright pirates.
"These sites profit from others’ work. Plain and simple."
These sites profit from others’ work. Plain and simple. It’s no different than illegal DVD sales or serial plagiarists (a particular scourge of journalism and academia), and steps should be taken to choke this off. The FairPlay Coalition plan seems a smart local response to a tricky global problem. We hope other reporters and academics hop on board.
The application notes the work the Department of Heritage did in 2016 and 2017 examining Canadian content in our new digital, global, world – a consultation which concluded that Canadian content makers must use digital platforms to export their wares – and that there must be a way for them to make a living from these new distribution platforms. “Piracy undercuts all of these objectives – it robs Canadian creators of the financial and other intangible benefits of the creation of cultural content and guarantees that they do not share in the rewards from its increasing dissemination. Investing in programming is already risky, and becomes increasingly unviable if even the rare hit cannot be effectively monetized because it is pirated online,” reads the coalition’s submission.
The report quotes a statistic from research firm MUSO which claims Canadians visited piracy sites 1.88 billion times in 2016 (something Bell Media’s Rob Malcolmson noted when he faced the Heritage Committee last fall).
Supporting that is a Sandvine report which says about 7% of North American households (or about 1 million Canadians) use illegal subscription piracy services and a study by MovieLabs which reveals 375 million pirated movies and TV shows were downloaded illegally in Canada in 2016 using the BitTorrent P2P protocol. “This excludes other P2P protocols, downloading directly from cyber lockers rather than peer-to-peer, and all piracy that took place through streaming sites (believed to be up to 85% of piracy engagements). In total, 99% of files available on BitTorrent have been found to be infringing,” it reads.
Of course losses being directly felt by the Canadian industry are very hard to quantify because it’s so hard to try to figure out who’s stealing what because no one is self-reporting that, and it’s hard to say if those streaming pirated content would automatically begin purchasing legitimate content. That said, “even estimates that do not capture this full spectrum of harms suggest that globally piracy sites have generated approximately $227 million in advertising revenue alone and that piracy had an estimated commercial value (in this case of movie piracy alone, excluding television) in 2015 of $160 billion,” says the application.
The application also quotes a real-world Cancon example. “Veteran Canadian film producer Don Carmody describes the piracy of his film Goon as like nothing he had experienced in four decades of filmmaking. He estimates that the film lost at least $1 million of potential box-office sales in Canada to piracy and likely millions of more in subsequent DVD or download sales.”
So far, in order to combat this, Canadian content makers and rightsholders have had to try to use the courts – and given the distributed nature of the internet globally, it’s virtually impossible to chase the operators of these sites all around the world, from Canada. Besides, the folks in charge may be in one place, servers in another – or in the case of torrents, the content is everywhere.
However, if we were to change policies so that the primary intermediaries, ISPs, could shut down pirate portals’ access to Canadians, under the direction of IPRA and the CRTC, that would work. It has worked. Actions to protect cultural industries from theft like this has been done in places like France, the U.K., Portugal, Ireland, Korea and many other countries, notes the application.
"This is not about going after individual Canadian internet users, either. The IPRA would have no mandate to do that. "
This is not about going after individual Canadian internet users, either. The IPRA would have no mandate to do that. It would be independent “and would consider applications based on the evidence presented,” reads the application. “It would only recommend adding a website to the list of piracy sites if the evidence presented establishes that it is blatantly, overwhelmingly, or structurally engaged in piracy.”
As well, the ISPs would not be responsible for monitoring such things. Problem sites would be dealt with on a complaints basis. Content creators or owners would notify IPRA, which would then begin an investigation and make recommendations to the CRTC, which would then make a decision, perhaps with an oral hearing first. (Although it’s seems pretty unlikely blatant pirates would actually show up in Gatineau for a hearing…).
Right now, ISPs (several of whom have content divisions or sell content through BDU activities) can’t identify pirates on their own and block websites. Section 36 of the Telecommunications Act says that “except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.”
That same Act, however, is what allows for the Regulator to take steps to have ISPs block access to pirate sites. It says in section 7 that our telecom system should serve “to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions,” and respond “to the economic and social requirements of users of telecommunications services,” and “contribute to the protection of the privacy of persons.”
Sections 24 and 24.1 allow the Commission to make participation in the telecom system a condition of offering service as an ISP in Canada and section 70(1)(a) empowers the Regulator to appoint an IPRA, if it desires, like for example the Commissioner for Complaints for Telecom-television Services.
Plus, Canadians have said they really don’t want their ISPs to decide what they see or don’t see. ISPs shouldn’t have (and don’t want) that power. Which is why IPRA makes sense. Plus section 36 also says the CRTC has the power to decide whether a service provider can disable access to a site. So can a judge, for that matter, but that legal process takes a very long time. A CRTC-backed IPRA is meant to move much more quickly. “The efficiency of the process is crucial, given the pace at which piracy can evolve online,” reads the application.
Looking for more safeguards?
- IPRA would have a board of directors, nominated by its members, rightsholders, ISPs, and consumer advocacy and citizen groups, with no single stakeholder group having a controlling position.
- The coalition is also recommending the CRTC itself establish criteria for it and IPRA in order to evaluate whether a particular site is “blatantly, overwhelmingly, or structurally engaged in piracy.”
Finally, net neutrality principles are not violated by choking off websites who are content pirates. Those ideals do “not prevent the legal and regulatory systems from taking steps to constrain the dissemination of unlawful content online,” notes the application, and an independent, third party agency like IPRA will continue to “treat ISPs as common carriers who do not unilaterally disable access to piracy sites.”
Look, piracy is easy – and it seems free to users – users who hate feeling like chumps because they are paying for content and their neighbour isn’t. However, it has to be called what it is and treated that way. It’s wrong and it impacts jobs (middle-class ones!) and investment in content and networks in Canada and we should be able to block access to obvious cheaters.
“Piracy is manifestly unfair to Canadians who continue to access content by legal means. As some individuals stop paying for creative content, an ever shrinking base of legitimate subscribers is forced to pay for the development of content which is stolen by an ever increasing group of pirate operators and their customers. In this way, honest customers and broadcasters pay higher prices in order to subsidize the entire piracy ecosystem,” says the application.
Amen.
