Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canada Tables New Anti-Illegal Downloading Laws

On June 12, 2008, the Conservative Government tabled Bill C-61 "An Act to Amend the Copyright Act", which cracks down on those Internet users who upload and share files and sets much higher penalties than for downloaders.  For example, Bill C-61 imposes fines of $500 on consumers who illegally download copyrights works and $20,000 fines for hacking electronic security features.  To read a copy of Bill C-61 (First Reading version), please click on the following link - http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3570473&file=4

Some of the criticism of Bill C-61 relates to how monitoring of illegal activities and enforcement is to take place.  Bill C-61 mandates that ISPs inform subscribers when a complaint has been launched against the consumer by the owner of a copyright.  The ISPs are also obligated to keep track of that user's contact information for six months in the event that the data became necessary for legal proceedings.  Needless to say, these provisions will have serious privacy implications for service providers operating in Canada. 

Some of the critics of Bill C-61 point out that under Canada's current copyright laws and case law, ISPs are obligated to release the personal contact information of their subscribers only in response to police requests in connection with serious criminal activity, usually in cases involving identity theft or child pornography. Bill C-61 takes this obligation to a whole new level because ISPs must provide ongoing services (without compensation) relating to personal information of subscribes by tracking of users' data.  The request for such free investigatory services would essentially come form private party industry groups who file complaints which lead to the enforcement requests to the ISPs.  There is no indication that the industry groups would have a threshold burden (such as probable cause) before private information is required to be tracked and provided.

It is unlikely that much will happen in the near future because Canada's House of Commons will recess for the summer some time between now and June 24, 2008.  This means that the Prime Minister, ministers and elected officials will not be in Ottawa and the House of Commons will not meet to debate this legislation. The House of Commons will not reconvene until mid-September at the earliest.  As a result of the long summer recess, the legislation will not be enacted soon and an opportunity exists for preparing and submitting comments and developing support or opposition strategies.
 

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