What the Copyright Modernization Act Means for Internet Service Providers, Search Engines and Broadcasters

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The Copyright Modernization Act supports the important role played by intermediary companies such as Internet service providers (ISPs), search engines and broadcasters in enabling the exchange of ideas and information. Key provisions include:

Limiting liability for ISPs and search engines: The Bill ensures that ISPs and search engines will not be held liable for the copyright infringements of their subscribers, to the extent that they are acting as neutral intermediaries (e.g., when they provide Internet access, allow users to download material they have stored in online personal storage space they control, or make temporary cached copies for network efficiency).

Creating a notice and notice regime: The Bill formalizes the voluntary "notice and notice" regime currently used by Canadian ISPs. Under this system, when an ISP receives a notice from a copyright holder that a subscriber might be infringing copyright, it forwards a notice to the subscriber. The identity of the subscriber may then be released with a court order. This uniquely Canadian approach has been effective at discouraging infringement and is consistent with Canadian values.

Providing exceptions for broadcasting: The Bill removes the requirement for broadcasters to pay to make temporary copies of music required for digital operations. Small cable systems will also see a harmonization of their treatment with that of larger players under the Copyright Act.

ISPs, search engines and broadcasters all enable the exchange of ideas, disseminate creative content and connect people across Canada and the world. In the digital environment, it is vital that these intermediaries are not held liable for the activities of their customers, so long as they are simply providing a connection. Providing clear limitations on their liability will ensure that these companies continue to provide users open access to the dynamic online environment.

At the same time, ISPs are in a unique position to facilitate the enforcement of copyright on the Internet. Because ISPs are often the only parties that can identify and warn subscribers accused of infringing copyright, this Bill encourages all of them to participate in the "notice and notice" regime. ISPs that do not participate could be liable for civil damages. This approach to addressing online infringement is unique to Canada. It provides copyright owners with the tools to enforce their rights while respecting the interests and freedoms of users.

With the adoption of new technologies, broadcasters today make temporary copies of the music they play on the air. Currently, they must pay rights holders for these copies, on top of what they pay for broadcasting the music. Recognizing the temporary and specific nature of these copies, the Bill removes the requirement to pay for any copies retained for less than 30 days.

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