ARCHIVED — Internet Service Providers: Copyright Liability
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June 2008
For Internet service providers (ISPs) and those who use their services
The purpose of this information sheet is to give general introductory information about current copyright law and to explain what would change under the proposed amendments. If you need to know how the law applies to a particular situation, please seek advice from a lawyer.
Current situation
- Generally speaking, ISPs are not responsible for copyright material communicated through their networks when they have no control over the content. They may become liable if they exercise some control in the communication of copyright material.
- Currently, most ISPs participate voluntarily in a “notice and notice” system to help prevent copyright infringement over their networks. Under this system, when an ISP receives notice from a copyright holder that a subscriber might be infringing copyright, it forwards a notice to the subscriber.
- Often, the subscriber is identifiable only by an IP address. The ISP itself, through its records, can notify the subscriber without revealing anything to the copyright holder. Depending on the nature of their subscriber agreements, in the absence of a court order, ISPs do not reveal the identities of their subscribers to the copyright holder.
What the proposed ISP liability provisions would allow
- ISPs will continue to be exempt from copyright liability in relation to their activities as intermediaries (e.g., when they provide Internet access, engage in caching for network efficiency or host websites for subscribers).
- Because ISPs are often the only parties that can identify and warn subscribers when they are being accused of infringing copyright, the new provisions would compel all ISPs to participate in the “notice and notice” regime. In other words, when an ISP receives notice from a rights holder that one of its subscribers is allegedly hosting or sharing infringing material, the ISP is required to forward the notice to the subscriber and to keep a record of relevant information (e.g., the identity of the alleged infringer). ISPs that fail to retain such records or to forward notices would be liable for civil damages.
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