Modernizing' ISP Copyright Liability
| Author | Gregory R. Hagen |
| Pages | 361-394 |
“Modernizing” ISP Copyright Liability
Gregory R. Hagen*
A. INTRODUCTION
In t he intense bat tle for t he spoils generated by the online information
ecosystem, it has been a contentious question as to whether Internet inter-
mediaries — especially t hose who carr y, host and i ndex others’ infor ma-
tion — should be l iable for copyri ght infringement in relation to content
provided by thi rd parties. Internet intermedia ries include Internet access
providers, web hosting providers, Internet payment system s, search en-
gines, portals, e-commerce intermed iaries, blogs, video sites, and social
networkin g pl atforms. Currently, under the Copyright Act, those who
provide the mea ns necessary for others to communicate works and other
subject matter on the Internet (Internet Service Providers or ISPs) will not
be l iable for copy right infr ingement if they merely prov ide such mea ns.
Under the Copyright Act, there are no mandatory notice and ta kedown
(NTD) provisions requ iring ISPs to prevent infri ngement by taking down
* I grateful ly acknowledge t he financial sup port of Borden Ladner G ervais, the re-
search assi stance of Kimber ly Howe, and the helpful c omments from an anonymo us
reviewer, Mic hael Geist, Sam Wit herspoon and Mar ia Lavelle.
More generally, Internet i ntermediarie s bring together or fac ilitate transa ctions
between th ird parties on the I nternet. See Organi zation for Economic Co- Operation
and Development , “e Economic and Soc ial Role of Internet I ntermediarie s” (April
), www.oecd.org/dataoecd///.pdf.
Copyright Act, R. S.C. , c. C-, htt p://laws.jus tice.gc.ca /en/C- [Copyr ight Act].
Ibid., ss. .()(b).
Gregory R. Ha gen
allegedly infringing subject matter when an allegation is received from a
copyright owner. Nor is there a notice and notice (NN) system which re-
quires ISPs to forward a notice from a copyright owner of alleged infr inge-
ment by its customer, in relation to the use of the ISP’s facilities, to the
allegedly infringing c ustomer. Nonetheless, it has been common practice
for a number of yea rs for major ISPs to voluntarily for ward a notice of al-
leged infringeme nt to their customers.
Bill C-, the Copyright Moderni zation Act, clarifies the liabil ity of In-
ternet intermediaries by add ing new immunity provisions for ISPs and
search eng ines. “ISPs and search engines are exempt from liability when
they act strictly as inter mediaries in communication, caching and host-
ing activities.” By implication, t he immunity under Bill C- wi ll apply
to access providers, hosts, bloggers, v ideo sites, social networking sites
and others who communicate third par ty content and merely act a s ISPs.
Search engines are treated differently and can enjoy immunity from liabil-
ity for damages, but are subject to injunctions. Further, the Bill introduces
a new form of secondary liability for Internet Intermedi aries who know or
ought to k now that their services are designed primar ily to enable copy-
right infringement. e possibility th at ISPs might be found liable for in-
fringement as authorizers of i nfringing activ ity by others remains.
Further, the Government of Canada comments that “ISPs are in a unique
position to facilitate the enforcement of copyright on the Internet.” In
particu lar, they are the only parties that can identi fy and notify subscrib-
ers accused of infringing copyright by usi ng the ISPs services. Bill C-,
therefore, ma ndates a NN system under which an ISP (excepting search
engines) must, without delay, forward notices of alleged i nfringement to
Bell, Roge rs, Shaw and Telus, “Submis sion of Bell, Rogers, S haw and Telus,” www.
ic.gc.ca/eic/site/.nsf/eng/.html [“Submi ssion of Bell, Roger s, Shaw and
Telus”].
Bill C- , Copyright Moder nization Act, d Se ss., th Parl., , www.parl.gc.ca/
HousePublic ations/Publicat ion.aspx?Docid= &file= [Bil l C-].
Canada, B alanced Copy right, “Copyri ght Modernization A ct — Backgrounder ” (June
), http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/h_rp .html [“Copyright
Moderniz ation Act — Backgrou nder”].
Bill C- , above note , s. . Note, however, the l imitations to th is partial im munity
discusse d later in this paper.
Bill C-, a bove note , s. . (See proposed s. (.)).
Canada , Balanced Copy right, “Wh at the New Copyright Mo dernization Ac t Means
for Internet Ser vice Providers , Search Engines a nd Broadcasters” (June ),
http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/rp.html [“Balanced Copy right”].
Ibid.
Chapter Twelve: “Moderni zing” ISP Copyright Liabilit y
the cu stomers they concern, but ISPs wi ll not be requi red to take dow n
allegedly infringing content. Nor wi ll ISPs be required to li mit or termin-
ate access when they are noti fied of allegedly infringing conduct of their
subscribers u nder a graduated response s ystem (GR). ISPs will also be re-
quired to preser ve evidence of the identity of alleged infringers for a per-
iod of up to six months, or one ye ar if the content creator commences an
action. If a n ISP fails to follow the notice procedures, it r isks being held
liable for an award of dam ages.
Most striki ng is the fact that the new secondary li ability provision will
be ineffect ive against highly decentrali zed, peer to peer file sharing net-
works, such as those using t he bitTorrent protocol, because there is no
central, coordinat ing entity that can be found liable. Instead, the pri mary
means of enforcing copy right against peer to peer file sh aring networks
under the Bill is to control the information itself rather than its distri-
bution through ISPs. is approac h, which is suggested by the World In-
tellectua l Propert y Organiz ation (WIPO) Internet Treaties, builds upon
the abil ity of copyr ight owners to use technological measures or “ digital
locks” to control access to their works and ot her subject matter. Since
infringers can also use tools to circumvent such measures, the Bill pro-
hibits the c ircumvention of digita l locks that control acces s to works and
other subject matter. Given a generative Internet, though, one in which
individual s are able to quickly respond and adapt to digital lock s, it will be
a challen ge, if indeed it is possible, for private interests to succee d in con-
trolling access to i nformation while serving copyright’s goals and main-
taining privacy, free expression, fair procedures and t he rule of law. at
is a topic for a different paper, however.
Bill C- , above note , s. . (See proposed s. ..)
Ibid. (See proposed s. . ()(b).)
Ibid. (See proposed s. .().)
WIPO Copyright Treaty, Dec ember , www.wipo.int/treat ies/en/ip/wct/trtdocs_
wo.html, I.L.M. at A rt. ; WIPO Perform ances and Phonograms Treaty,
December , w ww.wipo.int/treaties/en/ip/wppt/trt docs_wo.htm l, I.L.M .
, Art. ().
Bi ll C-, above note , s. . (See propos ed s. .().)
“Generativit y denotes a technolog y’s overall capacit y to produce unprompted
change dr iven by large, var ied, and uncoordin ated audiences.” See Jonatha n Zit-
train, “ e Generative Interne t” () Harv. L. Rev. – , www.harvard
lawrevie w.org/issues//may/zitt rain.shtm l at .
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