Opposing these Canadian organizations are international organizations of powerful, mostly foreign, corporations, some of which profit directly or indirectly from pirate activity. The Internet Society organization that has come out against FairPlay includes among its members Google, Facebook, AT&T, Cisco and Microsoft. Also opposed are various other NGOs, among them the Electronic Frontier Foundation, the Canadian Internet Policy and Public Interest Clinic and consumer groups. The battle will play out through public hearings before the CRTC.
Canada is ranked as the world’s 11th most active country in the world when it comes to TV piracy, seeing a total of 2.5 billion visits to piracy sites in 2017. Per capita, Canada’s in the top 10 per cent of offending countries. Some seven to 14 per cent of Canadian households regularly access digital media using a Kodi set-top box designed to steal paid content. Approximately 375 million pirated movies and TV shows were downloaded illegally in Canada in 2016 using the BitTorrent peer-to-peer protocol alone. The pirate websites that host downloads or streams, or the software used to stream are almost always hidden offshore, where getting and enforcing a take-down order are all but impossible for a copyright holder. Blocking them is the only effective remedy.
Pirated Canadian content has a big impact on the Canadian economy. Cultural industries employ 630,000 Canadians, or approximately four per cent of our workforce, and contribute $55 billion, or approximately three per cent, to Canada’s GDP. Within this industry, film and television production accounted for 140,000 full-time equivalent jobs, $8.5 billion in GDP and $3.3 billion in export value — and that does not include the thousands of jobs and billions of dollars in economic value contributed by the other activities of musicians, actors, broadcasters, broadcast distribution undertakings, movie distributors, cinemas, retailers, caterers and others affected by piracy.
FairPlay proposes the creation of an expert, independent body, the Independent Piracy Review Agency (IPRA), to recommend sites to be blocked. The IPRA would consider applications based on the evidence. The CRTC, after appropriate hearings and appeals and subject to court oversight, would be empowered to order a site blocked. It is hardly an aggressive proposal: Only sites determined to be blatantly, overwhelmingly or structurally engaged in piracy would be blocked. Many countries block such websites through bodies like the CRTC, including France, Germany, Sweden and the U.K.
Why would anyone oppose FairPlay? Part of it is a culture of opposition to copyright in the internet community. Copyright is a form of intellectual property that protects artistic expression (never facts or mere information). Without property rights, no author would be paid much for her work; we would have far fewer books or movies and much less art.
Strong copyright protection does not serve the interests of big-tech businesses. Google’s YouTube, for example, has benefitted massively from illegally posted first-run movies and whole music albums ripped for streaming; these have likely been some of its most profitable properties. Facebook doesn’t want to be responsible for clearing copyright for every post; neither does Twitter. Spotify wants to pay musicians the minimum amount for streaming their work. Paying for content is expensive. Google doesn’t want to de-list infringing sites.
Because some 24 per cent of Internet traffic is illegal downloading of movies and music, equipment and Internet infrastructure providers such as Cisco and Microsoft fear the diminishment in valuable traffic that pirate-site blocking would mean. ISPs argue that the system will be costly to implement. Individuals don’t want to lose access to free stuff.
Rampant piracy cannot continue, however. It makes no sense to impose this heavy piracy tax on the Canadian arts economy. We don’t give shoplifters free rein, and neither should we give it to pirates.
Richard C. Owens is an adjunct professor at the University of Toronto Faculty of Law and a senior Munk fellow at the Macdonald-Laurier Institute.
© Financial Post