Canada: ISP Liability: Canada’s Proposed Copyright Reforms

Last Updated: August 31 2004

Published in MLRC MediaLawLetter, May 2004.

By Andrew Bernstein and Tyson Dyck

Technology has always driven copyright reform. Each new medium—from audio recordings to television—has offered a new way to capture and disseminate ideas. Copyright law tries to balance this dissemination with the rights of the copyright holders.1 Now faced with digital technology, copyright law must repeat this balancing act: excessive regulation hampers the potential of digital technology to be used to communicate ideas quickly; too little regulation, however, strips copyright owners of their moral control over and economic stake in their works. Many jurisdictions, particularly the United States and Canada, have balanced or are beginning to balance this conflict in similar ways. Indeed, proposed Canadian initiatives are likely to produce a regime of ISP liability in copyright similar to that in the United States.

U.S. copyright law regarding ISP liability has largely been codified in the Digital Millennium Copyright Act (the "DMCA")2 and the Communications Decency Act (the "CDA").3 The CDA’s objectives are to prevent obscenity from being transmitted over the Internet and to promote the development of the Internet.4 To achieve these objectives, the CDA states that providers of interactive computer services, including ISPs, will not be treated as the publishers or speakers of information provided by a third party.5 This "Good Samaritan" clause was originally intended to encourage ISPs to monitor and edit content on their servers without fearing liability under defamation law as publishers or editors. However, this provision has been broadly interpreted and now protects all ISPs regardless of whether they edit or monitor their online content.6 The case of Gucci America v. Hall & Associates7 suggests that this limitation will only immunize ISPs against claims of online defamation. Still, the CDA treats ISPs as conduits, not sources, of objectionable information.

The DMCA follows this thinking with respect to copyright infringement. Under this Act, if an ISP creates a policy of terminating the accounts of repeat copyright infringers, it will not be liable for its own actions or for those of its infringing customers provided that its actions fall into one of four safe harbors. These harbors protect the following activities: acting as a mere conduit for infringing information;8 caching;9 innocently storing infringing information;10 and supplying information location tools (i.e., links) that might infringe copyright.11 On the other hand, ISPs are responsible, on threat of civil liability, for administering a detailed notice and take-down system.12 If an ISP becomes aware of an infringing activity, either through notice from the copyright holder or through other circumstances, it must take action.13 It must remove the allegedly infringing material, erring on the side of protecting the copyright holder; it need not assess the fair use of the material.14 However, to avoid a system of prior restraint of speech, the DMCA provides for "counter-notice," which permits the person posting the information to make a statement that the material does not infringe, and thereby permits the ISP to maintain the posted material online without threat of liability. This system, it is hoped, balances the rights of copyright holders with the practical difficulties of having ISPs monitor massive amounts of content.

Canada has no similar legislation applying to either online defamation or breach of online copyright. At least one case suggests that ISPs should be careful in exercising such control over the defamatory content so as not to ostensibly authorize it.15 The leading case on ISP liability in the copyright context is Tariff 22,16 which dealt predominantly with whether ISPs can be liable for communicating copyright-infringing works to the public (by letting them "flow" through their networks), copying the works (by caching them) or authorizing infringement and indirectly infringing copyright (by permitting users to use the Internet to infringe). The Federal Court of Appeal found that the person who posts the work, and not the ISP, communicates it to the public. The Court also found that to authorize an infringement, the ISP must "have enough control over the infringer to prevent the infringement and behave in a way that would lead a reasonable person to conclude that [the ISP] had approved or countenanced infringement."17 According to the Court, such a circumstance would be rare; it would require the ISP not only to approve the use of its equipment and transmission service for the infringing activity but also to purport to grant customers permission to infringe copyright.18 On the other hand, the Court found that ISP caching constituted copying, a finding that, we believe, may not find much support in the Supreme Court of Canada when it releases its reasons on this appeal.

The potential liability for indirect infringement remains less clear. The Canadian court in Apple Computer, Inc. v. Mackintosh Computer Ltd. suggested that once someone has actual or imputed knowledge that a particular work may be infringing copyright, he or she is obligated to ensure that it does not continue to do so.19 This thinking parallels the notice and take-down provisions in the DMCA; however, its application in Canadian law is vague. The issue has not been considered in the context of ISP liability and leaves potential for liability.

Faced with these uncertainties, the Canadian federal government has begun reforming the Copyright Act to resolve these issues. On June 22, 2001, it released its Consultation Paper on Digital Copyright Issues (the "Consultation Paper").20 In its section on the liability of network intermediaries, the Consultation Paper acknowledges that Canadian copyright law does not specifically deal with the role of ISPs. It therefore recommends a system similar to that set out in the DMCA—a complaints-driven notice and take-down procedure that recognizes both the interests of copyright holders and the infeasibility of requiring ISPs to monitor all their online content.21 This proposed procedure would have the following features: an ISP would not be liable for the copyright infringements of third parties who use its facilities to disseminate copyrighted information to the public. Nor would an ISP be liable for reproducing copyrighted material for caching or website hosting. An ISP could, however, be liable if it failed to block access to the infringing material after receiving proper notice from the copyright holder.22 Finally, an ISP that acted in good faith to comply with this notice and take-down procedure would not be liable for the economic harm suffered by the copyright owner or by the infringer. Like that in the DMCA, this procedure would recognize ISPs’ role as intermediaries but encourage them to fill this role responsibly.

The Canadian debate on copyright reform continues today. ISPs have submitted their opinions to the House Standing Committee on Canadian Heritage. They agree with limiting ISP liability but propose a notice and notice, rather than a notice and take-down, process.23 The Canadian Association of Internet Providers (CAIP), a collection of ISPs that provide about 80% of Internet connections in Canada, states that its ISP members will not knowingly host illegal content. If a copyright holder gives an ISP clear notice of an infringement, the ISP will then relay this notice to its customer and advise the Canadian Recording Industry Association (CRIA) that it has done so. ISPs will take down the infringing material only upon a court order if the notice and notice does not result in voluntarily removal.24

The federal government is considering these proposals, and new legislation is likely to be introduced during 2005.25 In the federal government’s March 24, 2004, Status Report on Copyright Reform,26 it considers two directions for this reform: first, to exempt ISPs from liability when they act as intermediaries, but to leave the possibility of civil sanctions if they do not help remove infringing material, perhaps using a notice and notice procedure; and second, to subject ISPs to liability for the infringing material on their facilities, which they could escape by meeting certain conditions, such as responding to the requests of copyright holders to remove infringing material or to collect royalties.27 In practice, these approaches might function similarly; in both cases, ISPs have some duty to respond to the requests of copyright holders. The difference lies in the initial presumption of liability. Whether ISPs will be prima facie liable for hosting infringing content will most likely depend on the Supreme Court’s decision in Tariff 22.28 The federal government will also consider the systems established in other jurisdictions, including the United States.29

Whatever direction it chooses, the federal government is likely to follow the Federal Court of Appeal’s analytical framework in Tariff 22, and grant ISPs some type of protection from liability. The outstanding issues concern the process by which ISPs will enjoy this protection. The Canadian federal government has reacted more slowly to the issue of ISP liability than has the U.S. government, but in doing so, it seems to have gained from the American experience. It will undoubtedly incorporate that experience into new Canadian copyright legislation that will deal with the rights of copyright holders in a new digital environment.

Andrew Bernstein is a litigation lawyer with substantial experience in intellectual property matters. As a member of Torys’ Intellectual Property and Technology Groups, a significant portion of his practice involves patents, copyright, trademarks, domain names and trade secrets issues.

Tyson Dyck is an articling student at Torys LLP.


1. M. Rushton, "When in Rome ... Amending Canada’s Copyright Act" 23 Can. Pub. Pol. 317, 319 (1997).

2. Digital Millennium Copyright Act, Pub. L. No. 105-796, 112 Stat. 2860 (Oct. 28 1998).

3. Communications Decency Act, 47 U.S.C. § 230.

4. Id. § 230(b).

5. Id. § 230(c)(1).

6. A. Bernstein and R. Ramchandani, Don’t Shoot the Messenger! A Discussion of ISP Liability, 1 C.J.L.T. 77 at 79 (2002).

7. 135 F. Supp. 2d 409 (N.Y. Dist. Ct. 2001).

8. DMCA, supra note 2, § 512(a).

9. DMCA, supra note 2, § 512(b).

10. DMCA, supra note 2, § 512(c).

11. DMCA, supra note 2, § 512(d).

12. See U.S. Copyright Office, The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary (December 1998) at http: // (accessed April 20, 2004), at 12.

13. D. Hayes, Liability of Online Service Providers, 19 The Computer & Internet Lawyer 12 at 14 (December 2002). Notice from the copyright holder or its designated agent must include identification of the copyrighted work or a representative list of works at the site; identification of the infringing material in sufficient detail to permit the service provider to locate the material; information where the complaining party can be contacted; and a signed statement that the injured party has the rights to enforce the copyright and has a good faith belief that the infringing activity is not authorized.

14. S. Nesbitt, Rescuing the Balance? An Assessment of Canada’s Proposal to Limit ISP Liability for Online Copyright Infringement, 2 C.J.L.T. 115, 120 (2003). Indeed, ISPs usually charge flat monthly fees, not a fee to access a particular site.

15. Bernstein and Ramchandani, supra note 6, at 79.

16. Re: SOCAN Statement of Royalties, Public Performance of Musical Works 1996, 1997, 1998 (Tariff 22, Internet) (1999), 1 C.P.R. (4th) 417 (C.B.D.), varied by Society of Composers, Authors & Music Publishers of Canada v. Canadian Association of Internet Providers (2002), 19 C.P.R. (4th) 289, 215 D.L.R. (5th) 188, [2002] F.C.J. No. 691 [hereinafter Tariff 22] and leave to appeal to S.C.C. granted in [2002] S.C.C.A. No. 289.

17. Nesbitt, supra note 14, at 123.

18. Nesbitt, supra note 14, at 123.

19. Apple Computer, Inc. v. Mackintosh Computer Ltd. (1986), 28 D.L.R. (4th) 178 (F.C.T.D.) at 225.

20. Canada, Industry Canada and Canadian Heritage, A Framework for Copyright Reform (June 22, 2001), at$FILE/digital.pdf (accessed April 19, 2004).

21. Id. at 36.

22. Id. at 37. Proper notice would be written, would identify the copyright holder and would provide a clear description and location of the infringing material.

23. Canadian Association of Internet Providers, Re: ‘Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act’—Review by the House of Commons Standing Committee on Canadian Heritage (September 15, 2003), at (accessed April 22, 2004) at 5-6.

24. Id. at 6-7.

25. Canada, Canadian Heritage and Industry Canada, "Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act" (October 2002), at (accessed April 27, 2004) at 43.

26. Canada, Canadian Heritage and Industry Canada, Status Report on Copyright Reform (24 March 2004) at$FILE/statusreport.pdf (accessed April 23, 2004) at 4.

27. Id. at 8.

28. Id.

29. Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions