Bill C-61, which would amend the Canadian Copyright Act, establishes new obligations for Internet service providers (ISPs) and “information location tool” providers, for example, Google™/(an “Internet Intermediary”), when they receive notice that a user might be infringing copyright. The Bill also reaffirms existing exemptions for Internet Intermediaries.
Consider the following example: Alex uploads a video clip to the hosting site YouTube™ without the copyright owner’s permission. Mike locates the video clip using the search engine Google and downloads the clip over a network provided by Bell™.
Under Bill C-61, the copyright owner may send a notice of alleged copyright infringement to: the network provider (Bell™), the host provider (YouTube), or the “information location tool” provider (Google).
In response, the Internet Intermediary must (a) promptly forward the notice (electronically) to the alleged infringer and (b) maintain records of relevant information for six months to one year. Failure to respond and keep records may result in statutory damages between $5,000 and $10,000.
By way of background, in 2004, the Supreme Court of Canada asked Parliament to clarify liability for Internet Intermediaries and recommended it enact a statutory “notice and take down” procedure, as has been done in the U.S. and European Community. With “notice and take down,” the Internet Intermediary in our example must respond by “taking down” the video clip, regardless of the merits of the infringement complaint. Bill C-61, however, adopts a “notice and notice” approach instead, indicating a policy choice that Internet Intermediaries act more as liaisons between rights holders and website operators than adjudicators of the dispute.
The Bill also limits the remedies available against “information location tool” providers, who meet certain criteria and have not received notice of an alleged infringement.
Being aware of these potential obligations is important for both traditional Internet intermediaries and providers of many web tools that would likely fall into the new category of “information location tool,” which is broadly defined as “any tool that makes it possible to locate information that is available through the Internet…” For example, a web tool might include search engines such as the blog finder, Technorati™, bookmark sharing sites such as del.icio.us™, and peer-to-peer indexing sites such as isoHunt™.
However, Bill C-61 also reaffirms the current Canadian position that Internet Intermediaries are exempt from infringement liability where they only act as conduits for the transmission of data. For example, YouTube, is not liable for infringement solely by providing the digital memory where the video clip is stored, unless they have notice of a court decision against the person uploading the clip. Bell is also not liable solely by providing the communication network, including caching for network efficiency