Roundtable Discussions in Vancouver on Content-Related Internet Liability

Copyright

The issue of liability as a result of a claim of infringement is difficult to address. How can the provider know that the claim is valid? In addition, if there is no action and the complaint is found valid, the level of liability may be higher. On the other hand, if the site is unilaterally shut down and the claim is not valid, the provider may be actionable for interfering unduly in the client’s business activities.

Monitoring of content transmitted by providers would pose difficulties both conceptually and practically. Should the provider be an enabler, a censor or a collector of personal and business-related information? Furthermore, technologies for monitoring content appear to be less and less effective. Terms and conditions of service, if too constraining, could result in reduced subscriptions.

Finally, must fair dealing be adjusted to new technologies?

One of the key challenges in a democracy would be to determine if judges or legislators should dispose of difficult issues. Some are of the view that laws should be clearer with respect to browsing, caching, implicit licences and other issues linked to electronic commerce, rather than leaving to judges the responsibility of deciding and risking possibly untimely decisions.

The issue of harmonising national laws with respect to digitization and the Internet was considered fundamental. An action may infringe copyright in Canada and be subject of an exception in the US. Conversely, an action may be allowed in Canada but considered as infringing in Germany. Which law applies?

Crimminal Activities

Issues related to criminal activities would be important and pose difficulties for Internet service providers. The most appropriate approach would be the adoption of a code of conduct.

Privacy

The issue of protection by the private sector of personal information has not been resolved. Only Quebec ensures such a protection. If there is no co-ordinated focus and resolution of the issues across Canada among the provinces, the federal government should serve as catalyst and possibly as facilitator. Otherwise, the problems may become much more serious.

Other Issues

Based on what right can a provider, a library or another not-for-profit organization, substitute itself for the judiciary process? The knowledge test when applied to provider liability may be useful in addressing this issue, which could also apply to copyright. Would this issue not already exist in the case of possible censorship of libraries with respect to a number of works that the community finds offensive?

The issue of domain names was raised with regard to the use of digital goods, and contributory and vicarious liability. The ".ca" domain would need to be modernized and be used in all priority, rather than the ".com" and ".org". This would considerably facilitate the identification of one’s residence

and the appropriate jurisdiction, rather than having to litigate or otherwise settle disputes in the United States.