Against

With the amount of money being spent on web development these days, it’s no wonder that web copyright infringement has become such a hot button topic. Protecting one’s precious online content has become increasingly difficult as online content volumes grow and the lines between what is and is not ethical in terms of information sharing become more and more blurred. Today, it’s become just as easy to cut and paste another’s content into a website as it is to create one’s own. So easy, in fact, that few if any users are even taking the time to change the wording. The general thought seems to be that as long as the original work is cited or linked backed to, then one has done nothing wrong.

However, simply citing or linking back to another’s work does not make one immune from accusations of copyright infringement. Far too many users have copyright infringement confused with plagiarism, thinking that as long as they are not attempting to pass off content as their own, they’re okay. Yet at its core, copyright infringement includes simply copying other content, regardless of whether or not the original content owner is credited.

The Canadian Way

With cases of infringement becoming ever more prevalent, federal lawmakers are resolving to take a hard line stance on enforcement. Recently, the Canadian House of Commons enacted sweeping reforms to its original online copyright infringement laws established in 1997. The Copyright Modernization Act implemented in June of 2012 created what some are calling the most restrictive digital lock protections in the world. As a part of this legislation, the Canadian government chose to buck the common trend of the rest of the world and promote a “notice-and-notice” regime to combat online copyright infringement.

Specifically, the notice-and-notice regime requires Internet intermediaries like web hosts and ISPs to notify users on their networks after having received notice themselves of a potential content infringement from the copyright owner. Having identified the IP addresses that are the sources of the infringement, the intermediary must inform the users of the issue. That notice must include:

• The claimant’s name and address
• The specific details of the materials that’s being infringed
• The claimant’s right to such materials
• The specifics of the alleged infringing activity
• The dates and times that the activity occurred
• The electronic addresses from which the activity originated

ISPs and web hosts are then expected to maintain records of these notices for up to one year in the event that the original copyright owner chooses to pursue any civil action.

Yet what really gives the notice-and-notice model its teeth is the threat of monetary penalties that accompany the intermediary notices. Users are informed that they could face fines of up to $ 150,000 per infringement. In most cases, that money is asked for up front.

A More Aggressive Approach

This method differs greatly from the online copyright enforcement methods currently in place around the rest of the world. The U.S., for example, follows a “notice-and-takedown” model that was first established in the Digital Millennium Copyright Act of 1998. Under this methodology, online service providers are granted safe harbor from penalties provided that they comply with the following three requirements:

• They quickly and expeditiously remove any allegedly infringing content
• They sufficiently demonstrate that they had no knowledge of the presence of the infringing material on their networks
• They did not receive any financial benefit that could be attributed to the presence of the infringing content.

A failure or delay in removing the material could cause the provider to lose its safe harbor protection and open it up to accusations of secondary liability for the activities of its users.

The Electronic Commerce Directive of 2000 established a de-facto standard for notice-and-takedown in the countries of the European Union. In it, it species that ISPs are not to be held liable for infringement activities that take place via their services if they do not have knowledge of the activity or they’ve taken sufficient measures to ensure that any allegedly infringing content is either removed or disabled. However, there are currently no specified rules in place regarding online copyright infringement at the national level in Europe’s largest countries. In such jurisdictions, the current requirements for providers to notify users of possible infringements are governed by common principles of law.

Notice-and-Notice vs Notice-and-Takedown

Critics of the U.S.’s notice-and-takedown model argue that it creates an atmosphere of panic amongst ISPs and web hosts, encouraging them to remove material for fear of penalties even when there is insufficient evidence to prove the infringement actually took place. Concerns over the impact on limiting free speech are on obvious consequence of this philosophy.

As far as the Canadian model, opinion has proven to be split right down the middle regarding the effectiveness of notice-and-notice. Internet providers enjoy the benefit of being freed from liability concerns provided they follow the requirements of sending out notices in the specified manner. Proponents also point to the fact that since the notice-and-notice regime’s inception, very few escalated actions have been required of content owners. Much of the Canadian content industry, however, has complained that this philosophy places the responsibility for online copyright enforcement squarely upon their shoulders.

Looking Ahead

So what does the future hold for notice-and-notice? Time will certainly tell whether or not this proves to be an effective method of deterring online copyright infringement. In the meantime, ISPs are placed in the unique position of trying to cater to both the demands of privacy from subscribers as well as the calls for protection from content owners. The impact on the Canadian broadcasting industry, which is now under the Copyright Act required to pay rights holders for temporary copies of the content used in their digital operations, has yet to be felt.

With as easy as it has become for people to set up shop in the digital space and subsequently try to piggyback on other’s information in order to support their own ideas, service models, or initiatives, issues with online copyright infringement are sure to remain at the forefront of the web development industry. Only time will tell as to which of the current copyright enforcement methodologies will truly take hold and prove themselves to be the preferred global industry method of stopping infringement. Until then, the debate between the notice-and-notice and notice-and-takedown models is sure to continue.

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