By Steven | April 10, 2008
Under the most significant provisions of the new amendments to the Copyright Act (which have been passed by Parliament but haven’t yet come into force), ISPs can be liable if their users infringe copyright. But only if:
- They’ve authorised or controlled the copying; or
- They’ve stored the material and know or have reason to believe it’s an infringement of copyright (for example because they’ve received a notice from the copyright owner telling them it is), and don’t take it down (either by deleting it or preventing access to it).
If the ISP receives a notice - regulations about the content of such notices haven’t been drawn up yet - and takes material down, it must inform the user straight away, and ensure the material isn’t cached.
ISPs must also have policies for terminating repeat copyright infringers.
This notice-and-takedown process actually offers protection to ISPs, who might otherwise be liable for copyright infringements they didn’t even know about. But might it be abused? As I’ve said before, there’s an awful lot of copyright infringement on the web. But by and large, most copyright owners don’t mind. Mostly it’s just ripping off news sites, and usually contains a link. Those who do mind may not care enough to issue a notice. Those who do care enough, well, they’re within their rights. And the remedy doesn’t cost anyone anything much.
What if a copyright holder deliberately asserts rights he or she doesn’t possess? That may be an offence under the Fair Trading Act or the Crimes Act. It’s not likely to happen too often. Anyway, if the true position can be shown, then the ISP will no longer have “reason to believe” it’s an infringement and can put the material back up.
So I don’t think this is likely to pose too much of a threat to free speech in practice. (In fact, this may become a model for other content disputes. Why should copyright owners get a nice shiny new remedy, but not, say, people who think they’ve been defamed, or had their privacy breached, or their confidential information posted? But that’s a much bigger discussion. I don’t want to suggest that there’s an easy answer).
But there’s a gap here. What if the ISP diligently takes down the material, and contacts the user, and the user says: “That’s no breach of copyright! I’ve got a fair dealing defence” (or something like that)? There isn’t anything in the Act to sort out what happens when there’s a genuine dispute. It will be up to the ISP to form a view about whether it has “reason to believe” there’s an infringement. If the ISP takes, and acts on, legal advice about whether there was a copyright infringement, it would be very likely to be safe, even if a court ultimately decides that there was a breach of copyright. Alternatively, the ISP might put the heat on the user, and say: “you provide me with a credible legal opinion, and we’ll put it back up”. Or the ISP might go back to the complainants and ask them to explain why they think it’s a breach.
I rather suspect that this is much more of a role than ISPs are going to want. And that budget-conscious ISPs are going to take the easy way out and keep the material down. Of course, they’ll have to juggle their reputations and customer relations, too…
I don’t want to overstate the problem. Most copyright infringements are obvious.
But I don’t want to understate it either. If you want to fisk someone’s work on your blog, and in the course of that, republish large chunks of it, the fiskee could send a takedown notice, and your material will probably have to be removed. You’ll have to convince your ISP - perhaps at the expense of a getting a legal opinion - to put it back up.
I haven’t thought about this hard, but I’m inclined to think that the best process in such situations would be for the ISP to be required by law to contact the notice-writer and say: “The user disagrees that your copyright has been infringed. Here is the user’s name and address. I am required to reinstate the material in 24 hours unless you get a court order.” This system would be much easier for ISPs to administer, since it wouldn’t revolve around their discretion. It would still provide a remedy for copyright owners, but it would put the heat back on them in cases of dispute. The danger that users could block such notices too easily could be met by requiring them to pay a successful copyright owner’s full court costs. There may be bigger pitfalls to this system than I’m imagining, though…
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