Roundtable Discussions in Montréal on Content-Related Internet Liability

September 3, 1997
Facilitator: MICHEL RACICOT

Copyright

Two particular issues were raised: browsing, which requires a digital copy of the information to enable a representation of that information on a screen; and caching of information at different relay points on the Internet, which may occur "blindly" in a number of cases.

Regarding browsing, the defence based on an implicit licence, as reflected in the study, would not be guaranteed success and, in any event, would only apply to authorized postings.

On the other hand, amendments to legislation to create an exception do not appear to be required, as the primary objective of laws would not be to prohibit but to generate revenues for authors -for example, certain licences provided by collectives societies include browsing, even though its value could be minimal. The issue of browsing would be theoretical and under these conditions, an exception would not be warranted.

However, it would appear of primary importance that the dialogue between authors and Internet access providers be pursued in view of ensuring effective collaboration, based on the rights and needs of those involved.

On the other hand, in view of reducing the risks of being attacked in conjunction with piracy, intermediaries would have appeared to have chosen the role of strict censorship. In response to a complaint, unilateral censorship on the part of intermediaries appeared excessive and inefficient; a request for prior authorization seemed more appropriate. It was noted that freedom of expression is a foundation of democratic society.

Regarding the issue of caching, the following question was raised: how can the user be certain that a copyright is not infringed and should an exception be introduced? In response, the following concerns were raised: it would be preferable to respect a right rather than expropriate it; a copyright includes economic and moral rights; ignorance should not be the basis for a dilution of rights; if an exception was to be triggered each time there was an issue, it would be preferable not to have any legislation at all.

It appeared that at a minimum intermediaries should be held responsible when they act as broadcasters and their civil liability is clear. In this regard, access providers would readily accept liability if directly involved in the content, but would not understand that it apply if their activities are limited to providing access to the network. One area of resolution could be explored, in the case where activities involved are not directly linked to the exploitation of the work, i.e. neither linked directly to the content nor to its exploitation.

Many solutions were suggested: general licences, partnerships, contracts, collaboration agreements, etc. Intermediaries could address their liability in various ways. A first step would be the adoption by intermediaries of a code of conduct. Although recent developments appear tofavour intermediaries adopting a censorship role, it is expected that the situation will evolve and that administrative mechanisms, now under negotiation, would alleviate risks of liability. The key challenge would be to pursue the dialogue between intermediaries and right owner representatives.

Criminal Activities

The development of Internet could pose serious difficulties to police authorities and, as a result, could generate concerns among providers. Risks of unexpected prosecution and alternatively of unquestioned collaboration would pose fundamental issues not only for intermediaries but also for society at large. As a result, rights and freedoms could be affected; the legal process could be jeopardized; and police censorship could be substituted to the democratic process. The problem in its entirety needs to be addressed.

Other Issues

Titles of works quoted in documents, electronic or not, would not generally be copyright protected. Hyperlinks could pose problems, especially if the original advertising on the linked site is replaced by the one on the linking site. Domain names may raise a number of issues in terms of trademarks, in particular in the case of non-registered ones. Discussions at various levels are presently conducted in a number of international fora.

Concerns were also raised if Canada were not to participate fully in international discussions relating to liability, as solutions to these issues would require international cooperation as well.

The issue of jurisdiction and applicable laws was not the subject of the study but would pose problems for a number of stakeholders.