ISP Copyright Liability
PART THREE Creativity Chapter twelve “Modernizing” ISP Copyright Liability Gregory R. Hagen* A. INTRODUCTION 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.1 Currently, under the Copyright Act,2 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.3 Under the Copyright Act, there are no mandatory notice and takedown (NTD) provisions requiring ISPs to prevent infringement by taking down * I gratefully acknowledge the financial support of Borden Ladner Gervais, the re- search assistance of Kimberly Howe, and the helpful comments from an anonymous reviewer, Michael Geist, Sam Witherspoon and Maria Lavelle. 1 More generally, Internet intermediaries bring together or facilitate transactions between third parties on the Internet. See Organization for Economic Co-Operation and Development, “The Economic and Social Role of Internet Intermediaries” (April 2010), www.oecd.org/dataoecd/49/4/44949023.pdf. 2 Copyright Act, R.S.C. 1985, c. C-42, http://laws.justice.gc.ca/en/C-42 [Copyright Act]. 3 Ibid., ss. 2.4(1)(b). 361 362 Gregory R. Hagen allegedly infringing subject matter when an allegation is received from a copyright owner.
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