Google, Yahoo! propose amendments to C-11 ‘safe harbour’ provisions

OTTAWA—The “safe harbour” provisions in the Conservative government’s copyright reform bill should be amended so that rights holders have more responsibility to inform cloud service providers about copyright-infringing works hosted on their networks, Jacob Glick, Canadian policy counsel at Google Inc., told the C-11 legislative committee Thursday on behalf of Google and Yahoo! Inc. Bill C-11, the Copyright Modernization Act, proposes a “safe harbour” measure to protect companies that offer digital storage services. The provision surrounding the hosting of works would ensure those companies cannot be held liable if their users post infringing, copyrighted material on their networks. Internet service providers (ISPs) and companies that offer telecommunication services over digital networks would be afforded the safe harbour protections under section 31.1 of Bill C-11. Glick told the C-11 committee that the provision is “critical” to support investment in cloud computing services in Canada and proposed amendments on behalf of Google and Yahoo! to ensure the law does not “slow or handicap” investing. “Ultimately, cloud computing is only going to work as a system of computing if the people offering the services have the confidence that those services themselves aren’t going to come under attack,” Glick said, suggesting cloud services could be fighting copyright lawsuits if the safe harbour provisions are not clear enough. Under the bill’s current drafting, safe harbour protections would not apply to hosting services if those services have knowledge they're hosting copyright-infringing material, as proven in court. Google and Yahoo! proposed that threshold should be changed so the safe harbour protections would not apply when the provider “is notified by the owner of the work” about the infringing material, according to a brief submitted to the committee. The companies said rights owners should also be responsible for informing cloud service providers of “the electronic location of the work.” “If the operators of services don’t have the confidence that the materials that they’re storing on behalf of somebody else can be stored by them at the discretion of somebody else without triggering liability, they simply won’t do it,” Glick said. “In other words, you have to have a certain level of immunity as an operator on behalf of the end client,” he said. James Gannon, a copyright lawyer at McCarthy Tétrault who tends to act on behalf of copyright holders, told the committee this week that, in his opinion as an expert, the safe harbour provision in C-11 is “really broadly worded.” In an interview, Gannon, said Google's proposal seems onerous for rights holders. The C-11 provision does not require service providers to “police” their networks, he said. Instead, he said, they would be required to remove any infringing material they know of. “If you come across infringing material on the site that you host, there should be an obligation to do something about it,” Gannon said. “This proactive requirement that the one person who owns the right to that material has to police every site on the Internet—or otherwise that material stays there—seems very onerous,” he said. Glick told the committee that regulatory uncertainty surrounding copyright law impacts investor willingness to invest in cloud technologies. He pointed to a report by the Harvard Business School, released last fall and titled “The Impact of Copyright Policy Changes on Venture Capital Investment in Cloud Computing Companies,” that looked at investment in cloud services following a 2008 decision from U.S. Second Circuit Court of Appeals. The decision, The Cartoon Network, et al. v. Cablevision, struck down legal arguments that cable provider Cablevision Systems Corp. infringed copyright with its personal video recorder service. The report said that, following the decision, investments in cloud computing technologies and companies rose by $728 million to $1.3 billion over the next two-and-a-half years. He said copyright law “with insufficient safe harbours for online intermediaries” can be worse for cloud services investors than a recession. —With files from Simon Doyle nkyonka@thewirereport.ca

Google, Yahoo! propose amendments to C-11 ‘safe harbour’ provisions

Broadcast | March 2, 2012

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