“Modernizing” ISP Copyright Liability - Gregory R. Hagen

From "Radical Extremism" to "Balanced Copyright" : Canadian Copyright and the Digital Agenda

Chapter Twelve

“Modernizing” ISP Copyright Liability
Gregory R. Hagen

In the intense battle for the spoils generated by the online information ecosystem, it has been a contentious question as to whether Internet inter- mediaries—especially those who carry, host and index others’ informa- tion—should be liable for copyright infringement in relation to content provided by third parties. Internet intermediaries include Internet access providers, web hosting providers, Internet payment systems, search en- gines, portals, e-commerce intermediaries, blogs, video sites, and social networking platforms. Currently, under the Copyright Act, those who provide the means necessary for others to communicate works and other subject matter on the Internet (Internet Service Providers or ISPs) will not be liable for copyright infringement if they merely provide such means. Under the Copyright Act, there are no mandatory notice and takedown (NTD) provisions requiring ISPs to prevent infringement by taking down 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 infringe- ment by its customer, in relation to the use of the ISP’s facilities, to the allegedly infringing customer. Nonetheless, it has been common practice for a number of years for major ISPs to voluntarily forward a notice of al- leged infringement to their customers.

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