Canadian ISPs and copyright holders present opposite views on ISP liability

Canada’s music recording industry has asked Parliament to change the ad hoc arrangement by which Internet service providers (ISPs) deal with copyright infringing material online. The Canadian Recording Industry Association (CRIA) asked a meeting of the Standing Committee on Canadian Heritage to move to a U.S.-style notice-and-takedown regime that would require ISPs to remove any material hosted on their servers when told by a copyright holder that the material is in violation of the law. ISPs currently use a system of notice-and-notice that sees them notify subscribers that material is potentially illegal, but they don’t remove the contents. The system isn’t legislated, but ISPs including the largest cable and DSL providers defend the system as a workable alternative to American-style law. On April 22, CRIA counsel Richard Pfohl told the committee: "The approach proposes that ISPs could be made subject to ‘civil sanctions’ if they do not comply with certain requirements to remove infringing material from their networks. If, by civil sanctions, they mean to exempt ISPs from liability under the Copyright Act, and merely subject them to a separate set of civil sanctions, then this is unacceptable. ISPs should not be above the copyright law. Furthermore, ISPs should also be subject under applicable circumstances to potential criminal liability under the copyright law, just like any other actor. "The Industry department proposes a ‘notice and notice’ scheme to curb infringing activities on the Internet. My guess is the department proposed this notice and notice scheme because rights holders have entered into such arrangements with ISPs and particularly with the associations represented on this panel. Rights holders agree to these notice and notice arrangements because, frankly, that was all the ISPs were willing to provide to us. They are, however, inadequate. "The notice and notice scheme is simply a non-starter…This, frankly, is a prescription for widespread infringement. Effectively, a notice-and-notice scheme simply provides a warning to infringers that they’d better hide their tracks. A notice-and-notice scheme establishes no obligations upon the ISPs to take effective actions against the infringement, or to identify the infringers, and doesn’t even provide an ability for the rights holders to help themselves because the rights holders can’t even discover who the infringers are. "When an ISP’s commercial facilities are being used to break the law, and the ISP is notified that they are being used to break the law, the ISP should be required to take action to identify the law breaker and stop the law breaking. That’s a simple proposition. A notice and notice provision would the existing methods which are clearly failing in light of the devastating amount of online piracy taking place." A notice-and-takedown regime will be controversial, and represents yet another area where Industry Canada and Canadian Heritage will disagree on potential changes to Canada’s Copyright Act. At the same meeting, Jay Kerr-Wilson, VP of legal affairs at the Canadian Cable Television Association (CCTA) presented the opposite view, stating that imposing liability on ISPs or requiring them to pay a copyright levy could seriously affect the ISP industry and the Internet in Canada, by discouraging innovation and investment, and significantly increasing the cost of Internet access. "It would make the currently legal activity of providing Internet access an act of copyright infringement with potentially crippling liability." He said that imposing copyright liability on Canadian ISPs would have "grave implications for the health and future growth of the ISP industry and the development of the Internet in Canada," and it could be "devastating for Canadian Internet users", who would, in that case, be faced with increased costs for Internet access. - with files by Zoran Vidic

Canadian ISPs and copyright holders present opposite views on ISP liability

Broadcast | April 30, 2004

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