Rescuing the Balance?: An Assessment of Canada\u27s Proposal to Limit ISP Liability for Online Copyright Infringement

This paper attempts both to explain the technological and legal imperatives pressing Canada to address the issue of ISP liability in reforms to the Copyright Act and to raise some concerns about the impact of the government’s proposed amendments in this area. The basic elements of copyright law, the impact of digital technology on copyright and the policy arguments surrounding ISP liability are briefly discussed to set the context for judicial treatment of and legislative action on this issue. Next, the paper focuses on the development of American jurisprudence with respect to limitation of ISP liability for third party copyright infringement, 14 including examination of the pre-existing legal uncertainty in this area as well as the clarification offered in the DMCA. The position in Canadian law is then assessed, highlighting in particular how proposed amendments to the Copyright Act help resolve the legal questions surrounding ISP liability that remain unanswered after the Copyright Board’s Tariff 22 decision and its subsequent judicial review by the Federal Court of Appeal.15 Theoretical justifications of copyright law are considered as a measure against which to assess whether the effects of the proposed new enforcement regime accord with the fundamental purposes of copyright law. The paper concludes that, although the proposed amendments limiting ISP liability are an adequate first step in helping copyright confront new technologies, they must be fine-tuned in order to better protect the public interest before any legislation is passed