Here’s why some Canadian carriers have rights to the content you send

Some Canadian telecoms use clauses in their terms of service to protect against copyright infringement suits

Though you probably didn’t know it, there’s a good chance your Canadian carrier has rights to the content you’re sending over its network.

As spotted by one eagle-eyed MobileSyrup reader, several Canadian telecoms have sections in their terms of service that refer to the customer granting a license to content sent over the network, or waiving their moral rights to that content.

For instance, one part of Telus’ terms of service states:

“To enable you to post content to the Internet using the service, you grant Telus and Telus’ service providers a world-wide, royalty-free, unrestricted license to use, copy, adapt, transmit, display, communicate and create compilations and derivative works from this content.”

“…A world-wide, royalty-free, unrestricted license…”

Bell has a similar statement:

“To provide Bell Services, Bell may need to use, copy, adapt, transmit, display, publish and perform, distribute and create compilations and derivative works from your content. By agreeing to receive the Bell Services, you waive your moral rights and you authorize Bell to perform these activities in relation to your content anywhere in the world, solely as required for Bell to provide you the Bell Services.”

Freedom Mobile also has a clause in which customers grant a license to their content, as did an older version of Rogers’ terms, though the carrier no longer has such wording.

Meanwhile, Eastlink, SaskTel and Videotron do not appear to have similar wording related to licensing.

Why are the rights needed?

Naturally, MobileSyrup had to investigate. Why exactly do those telecoms need licenses to customer content in order to provide service? We reached out to the major carriers, as well as consumer advocacy group OpenMedia, to find out.

Katy Anderson, digital rights specialist at OpenMedia, told MobileSyrup she consulted with the Canadian Internet Policy and Public Interest Clinic (CIPPIC) in order to come to an educated guess.

Anderson said that generally most internet service providers don’t keep subscriber content being sent over the network for long, but they do have temporary caches that are necessary to provide service.

Why exactly? Anderson gave the example of delivering SMS from one user to another when the receiver’s device is shut off. The SMS data, she said, is temporarily cached on a carrier server.

Supporting that example, in a Rogers support page updated last June, the carrier states texts are stored for a maximum of 72 hours before being deleted from its message centre.

While this use case doesn’t sound too problematic, Anderson says customers would likely be able to sue for copyright infringement regarding that ephemeral backup if telecoms didn’t add protective clauses like the ones above to their terms of service.

Carriers respond

In its response to MobileSyrup, Telus said the clause does not relate to SMS provisioning, but painted a similar picture.

“Customers and other third parties who create content own the copyright to their original work. Those copyrighted works when uploaded to our network can be stored and transferred in various ways simply as a result of the way the technology works. Some of these network operations can be viewed as infringing one or more of the spectrum of rights that are included in copyright protection. The license is designed to avoid this risk.”

“It speaks to how these contracts force us to give up a lot of our rights just to get basic services.”

Meanwhile, Bell responded simply: “The use of customer content is solely for the purpose of transmitting that content over the Bell network.”

Essentially, these clauses protect the telecoms from getting sued over copyright issues, even if they don’t have any intention of doing anything except for temporarily storing and transferring that data.

Still, Bell and Telus’ clauses seem to refer to much more sweeping use of customer content, including “derivative works” and “compilations.”

Beyond the clause

To Anderson, this is a great example of how wireless terms can be needlessly overreaching.

“I think it speaks to how these contracts force us to give up a lot of our rights just to get basic services,” said Anderson.

“The CRTC [Canadian Radio-television and Telecommunications Commission] needs to enforce that these contracts are in plain language that we understand.”

One of Canada’s major carriers, however, has wording that sounds much less over-reaching, even if it’s still likely a bit too obtuse for most Canadians to understand.

Rogers’ terms of service states that it may “access or preserve content or information to comply with legal process in Canada or foreign jurisdictions, operate the Services, ensure compliance with an Agreement, or protect ourselves, our customers or the public.”

The clause still gets the same major point across, it just doesn’t explicitly grant itself a license to rights, or ask customers to waive their moral rights. It also doesn’t enumerate the same actions as Bell and Telus.

Ultimately, the response from industry — and two consumer advocacy organizations working together — is that these clauses, however worrisome they may look at first, exist to provide carriers with protection from copyright suits over their storage and transferring practices.

What’s your opinion? Over-reaching or appropriate? Let us know in the comments, along with any terms of service clauses you’re interested in knowing more about.