addressing the issue of service provider liability
and in encouraging removal of infringing material. The “Online Copyright Limitations of Liability
Act,” a part of the Digital Millennium Copyright
Act (DMCA) of 1998, 33 gives service providers a
“safe harbor” from liability for their users’ copyright infringements provided they implement
copyright policies and a notice-and-takedown
regime. Where a service provider unknowingly
transmits, caches, retains, or furnishes a link to
infringing material by means of an automatic
technical process, it is protected from monetary
liability so long as it promptly removes or blocks
access to the material upon notice of a claimed
infringement. 34 (The ISPs’ CDA 230 immunity discussed above applies primarily in the context of
defamation matters and explicitly excludes intellectual property offenses.)
The notice-and-takedown provision has
been seen as giving copyright owners—potentially anyone who has fixed an “original work of
authorship”—unwarranted leverage over service
providers and their subscribers. When a provider
is notified of an alleged infringement, risk aversion encourages it to remove or disable access
to the specified material, probably without first
informing the subscriber. The subscriber may file
a counter-notice and have the content restored if
the copyright owner does not file a claim in
court, 35 but such challenges are rare.
Subscribers, like the providers hosting their Web
sites, are more likely to concede to takedown
pressures, even when an infringement may not
actually be occurring. If a subscriber is sued, his
or her identity may be subpoenaed, as in cases
of defamation, and with similarly little judicial
scrutiny. 36 Major search engines such as Google
comply with hundreds of removal requests a
month, when it is not even clear that provision of
a hyperlink would incur copyright liability. 37
As Canada began to consider amending its
copyright laws, it appeared to be following in the
footsteps of the United States. In 2004, the
House of Commons Standing Committee on
Canadian Heritage re-tabled its Interim Report on
Copyright Reform, which proposed a notice-andtakedown policy similar to that of the DMCA,
under which Canadian service providers would
be compelled to remove content immediately
upon receiving notice of an alleged infringement
from a professed copyright holder. The Report
came under fire from the Canadian Internet Policy
and Public Interest Clinic (CIPPIC), Digital
Copyright Canada, and the Public Interest
Advocacy Centre (PIAC); numerous petitions and
critiques have followed, calling for balance
between the rights of content creators and fair
public use. The government seems to be
responding to these inputs as it continues to consider changes to copyright legislation. 38
In the midst of this period of copyright
uncertainty, Canadian ISPs have implemented a
notice-and-notice policy for handling copyright
infringement. Originally proposed in the nowdefunct Bill C-60, which was dropped from the
legislative agenda in 2005 with the collapse of
the Liberal government, 39 the policy allows copyright owners to send notices to ISPs regarding
possible copyright infringement by subscribers.
The ISPs then forward the notices to their subscribers requesting them to desist in their illegal
activities. 40 Even though the notices do not mean
that immediate legal action will follow if infringing
activities do not cease, they have been successful in getting significant portions of infringing subscribers to remove their materials. 41
At present, however, protections against
defamation and copyright infringement afforded
under U.S. and Canadian law remain in tension
with the rights of service providers and Internet
users, often giving rise to the censoring and selfcensoring of material. Canadian service
providers erring on the side of caution may
remove content from subscribers’ sites, as U.S.
providers do when informed of alleged copyright
violations. User material is therefore subject to
censorship based on unsubstantiated claims.
Moreover, because subpoenas offer plaintiffs an
Regional Overviews
231
and in encouraging removal of infringing material. The “Online Copyright Limitations of Liability
Act,” a part of the Digital Millennium Copyright
Act (DMCA) of 1998, 33 gives service providers a
“safe harbor” from liability for their users’ copyright infringements provided they implement
copyright policies and a notice-and-takedown
regime. Where a service provider unknowingly
transmits, caches, retains, or furnishes a link to
infringing material by means of an automatic
technical process, it is protected from monetary
liability so long as it promptly removes or blocks
access to the material upon notice of a claimed
infringement. 34 (The ISPs’ CDA 230 immunity discussed above applies primarily in the context of
defamation matters and explicitly excludes intellectual property offenses.)
The notice-and-takedown provision has
been seen as giving copyright owners—potentially anyone who has fixed an “original work of
authorship”—unwarranted leverage over service
providers and their subscribers. When a provider
is notified of an alleged infringement, risk aversion encourages it to remove or disable access
to the specified material, probably without first
informing the subscriber. The subscriber may file
a counter-notice and have the content restored if
the copyright owner does not file a claim in
court, 35 but such challenges are rare.
Subscribers, like the providers hosting their Web
sites, are more likely to concede to takedown
pressures, even when an infringement may not
actually be occurring. If a subscriber is sued, his
or her identity may be subpoenaed, as in cases
of defamation, and with similarly little judicial
scrutiny. 36 Major search engines such as Google
comply with hundreds of removal requests a
month, when it is not even clear that provision of
a hyperlink would incur copyright liability. 37
As Canada began to consider amending its
copyright laws, it appeared to be following in the
footsteps of the United States. In 2004, the
House of Commons Standing Committee on
Canadian Heritage re-tabled its Interim Report on
Copyright Reform, which proposed a notice-andtakedown policy similar to that of the DMCA,
under which Canadian service providers would
be compelled to remove content immediately
upon receiving notice of an alleged infringement
from a professed copyright holder. The Report
came under fire from the Canadian Internet Policy
and Public Interest Clinic (CIPPIC), Digital
Copyright Canada, and the Public Interest
Advocacy Centre (PIAC); numerous petitions and
critiques have followed, calling for balance
between the rights of content creators and fair
public use. The government seems to be
responding to these inputs as it continues to consider changes to copyright legislation. 38
In the midst of this period of copyright
uncertainty, Canadian ISPs have implemented a
notice-and-notice policy for handling copyright
infringement. Originally proposed in the nowdefunct Bill C-60, which was dropped from the
legislative agenda in 2005 with the collapse of
the Liberal government, 39 the policy allows copyright owners to send notices to ISPs regarding
possible copyright infringement by subscribers.
The ISPs then forward the notices to their subscribers requesting them to desist in their illegal
activities. 40 Even though the notices do not mean
that immediate legal action will follow if infringing
activities do not cease, they have been successful in getting significant portions of infringing subscribers to remove their materials. 41
At present, however, protections against
defamation and copyright infringement afforded
under U.S. and Canadian law remain in tension
with the rights of service providers and Internet
users, often giving rise to the censoring and selfcensoring of material. Canadian service
providers erring on the side of caution may
remove content from subscribers’ sites, as U.S.
providers do when informed of alleged copyright
violations. User material is therefore subject to
censorship based on unsubstantiated claims.
Moreover, because subpoenas offer plaintiffs an
Regional Overviews
231