ISP Lisability and Bill C-60
Bill C-60 had problems, but two areas were actually better for the public than anyone expected. One of these areas (click here for the other) concerns liability -- or lack thereof -- for Internet service providers (ISPs). However, even this provision could be improved substantially.
The Good News
Internet service providers are often caught in the crossfire when copyright holders go after copyright infringers. Even though they simply provide an Internet connection, ISPs often have deeper pockets -- and are juicier targets -- for copyright litigants. That's why ISPs have sought "safe harbor" provisions that wouldn't force them to take the fall if a customer infringes copyright.
Bill C-60 uses a “notice & notice” system to protect ISPs from liability for infringements that occur on their networks. In other words, where an ISP receives a notice alleging that a customer is infringing a third party copyright, the ISP will not be liable for that infringement if it passes the notice along to the customer. The alternative was to adopt a “notice and takedown” system, which is the approach used in the United States. Under "notice & takedown," ISPs also must remove the allegedly infringing material upon receipt of a notice claiming infringement. The customer then bears the burden of contesting the allegation, and requesting the content be re-posted.
This may sound like a small difference, but its effects are substantial. In the U.S., the notice & takedown system can be used as a quick, cheap way to silence someone online. In 2004, for example, a voting machine company was able to use this process to censor critics who were exposing security problems in its products. The company was later punished for abusing these provisions, but only after months of litigation. Bill C-60 would simply obligate ISPs to pass along notices. ISPs can still be required to remove material, but only after a court has reviewed all relevant facts and issued an order to do so. This is much less abusive than the analogous American policy.
The Bad News
While C-60 handles ISP liability fairly well, two aspects of the proposed regime should be changed. First, Bill C-60 requires ISPs to preserve information about their customers’ online activities upon notice of an alleged infringement. Once a notice has been received, the ISP will be obliged to preserve and hold the customer’s Internet records for six months – all without anything more than a bare allegation, unsupported by evidence, that the customer has infringed copyright. As a practical matter, an Internet search tool provider will have to remove access to allegedly infringing material to avoid liability, much like in the American notice & takedown regime.
The second problem with C-60's ISP regime is the absence of any way to punish those who abuse the notice & notice provisions. Sending spurious notices ought to trigger a penalty.
Finally, Bill C-60 imposes some disturbing obligations on Internet search engines and archives. For example, a search tool provider will have to remove access to allegedly infringing material to escape liability, much like in the American notice & takedown regime. This amounts to a free injunction for content owners, with Canadians’ free speech rights ultimately paying the price.
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