Made in Canada: A Unique Approach to Internet Service Provider Liability and Copyright Infringement

• Author: Sheryl N. Hamilton
• Pages: 285-308

Made

in

Canada:

A

t

c-

*r

*

*

^

«#

?

Sheryl

N.

Hamilton

Understanding

networks

not

as

metaphors,

but

as

materialized

and

mater-

ializing

media,

is an

important step towards

diversifying

and

complexify-

ing our

understanding

of

power relationships

in

control

society.1

A.

INTRODUCTION

In

its

recent proposed amendments

to the

Copyright

Act

(Bill

C-6o),2

the

Canadian

government

is finally

addressing

the

long-standing

and

thorny

issues surrounding

the

liability

of

Internet Service Providers (ISPs)

for ma-

terial circulating

on the

Internet

that

infringes copyrights.

In

general,

and

in

keeping with most other Western jurisdictions,

the

legislation

states

that

ISPs

are not

infringing copyright when they merely

act as

technical

The

author gratefully acknowledges

the financial

support

of

Carleton University

and the

Social Sciences

and

Humanities Research Council

of

Canada. Sara Ban-

nerman provided outstanding research support.

Eugene

Thacker,

"Foreward:

Protocol

Is as

Protocol Does" (2004)

in

Alexander

R.

Galloway,

Protocol:

How

Control

Exists

After

Decentralization

(Cambridge,

MA:

MIT

Press, 2004)

atxv

/

o262O72475forwi.pdf

>.

Bill

C-6o,

An Act to

Amend

the

Copyright

Act,

ist

Sess.,

38th

Parl.,

2005,

online:

_

i.pdfx

285

TEN

i

2

286 IN THE

PUBLIC

INTEREST:

THE

FUTURE

OF

CANADIAN COPYRIGHT

LAW

conduits

for the

transmission

of

copyrighted

material.3

But

it's

a lot

more

complicated

than

that,

because

the

nature

of the ISP is a lot

more com-

plicated

than

that.

ISPs

have variously been compared

to

postal systems,

telephones,

dramatic

theatres,

cable

television

systems,

toll

highways,

truck rental agencies,

and

record

shops.4

Yet,

as

Eugene

Thacker

points

out

above, such

metaphors

can

work

to

obscure

rather

than

elucidate

the

actu-

al

workings

of the

Internet

and

their power implications.

The

Internet

as

a

medium

of

communication potentially subject

to

copyright regulation,

and the ISP as one

pivotal player

in

that

process, need

to be

understood

in

their

specificity

if we are to

evaluate

the

proposed legislation

effectively.

In

this

analysis,

I

will

first ask

what

are

ISPs,

how

should

we

think about

them,

and why are

they implicated

in

copyright disputes.

I

then

evaluate

three

different

approaches

to ISP

liability:

total

liability,

total

immunity,

and

limited liability. Total liability

is an

option

that

has not

really been

considered

in

Canada

and is

often associated

with

repressive regimes.

A

system

of

total

immunity

for

ISPs,

usually accompanied

by a

form

of

vol-

untary regulation, essentially describes

the

legal

status

quo as it

exists

in

Canada

until

the

legislation

is

passed. Finally,

an

approach

of

limited liabil-

ity for

ISPs

is

usually accompanied

by a

mandatory administrative regime

for

dealing with complaints

by

copyright owners.

The

legislation proposes

a

limited liability model

for

Canada,

but its

approach

to the

mandatory

administrative regime

for

copyright complaints

is

what

is

striking.

Interestingly, while

the

rest

of the

Western world

has

adopted what

has

come

to be

known

as a

Notice

and

Takedown (NTD) system, Canada

is

taking

an

original approach, proposing instead,

a

Notice

and

Notice (NN

system.

This

is

discussed

in

more

detail

below,

but

briefly,

in the NTD ap-

proach,

if a

rights

owner becomes aware

of a

copyright infringement

on a

particular computer system,

it

provides notice

to the ISP

which maint

ain

that

system.

The ISP is

then

obliged

to

"take

it

down," namely remove

that

content

or

block access

to it. In an NN

system,

on the

other hand,

the

copyright owner provides notice

of its

allegation

that

copyrighted works

are

being circulated illegally

on the

ISP's

system

to the

ISP.

The ISP

then

forwards

that

notice

to the

alleged

offender

— its

customer

— who can ei-

ther

remove

the

content

or

face

pursuit

in the

courts

by the

rights owner.

3

Ibid.,

cl.

20.

4

These metaphors

are

drawn

from

the

submissions received

by

ISPs,

broad-

casters,

CRIA,

and

other similar stakeholder organizations throughout

the

consultation

process conducted

by

Canadian Heritage

and

Industry

Canada:

.