Supreme Court ruling is clearly a pro-Internet, pro-service provider decision, says Andrew Bernstein in The Globe and Mail

June 30, 2004

Internet service providers are off the hook when it comes to paying royalties on music content downloaded by individual users, said the Supreme Court of Canada. In Canadian Association of Internet Providers, et al. v. Society of Composers, Authors and Music Publishers of Canada, et al., the court's nine to zero ruling held that ISPs are conduits and it is both impractical and unfair to expect them to monitor and pay tariffs on the vast flow of Internet-accessible content.

The ruling sounded a sour note for content producers and publishers, who are now left to sue individual users if they want to collect royalties for copyright infringement.

Mr. Justice Ian Binnie, speaking for the majority, emphasized the importance of protecting the Internet's revolutionary capacity to disseminate works of the arts and intellect for the benefit of Canadians. "Its use should be facilitated rather than discouraged," he said. "But this should not be done unfairly at the expense of the creator of the works. The Internet presents a particular challenge to national copyright laws, which are typically territorial in nature."

The ruling carefully skirts the issue of whether service providers can be found liable for the transmission of defamatory text or material that infringes Criminal Code provisions, commented Andrew Bernstein. "This is clearly a pro-Internet, pro–service provider decision, but the court has left open how it will deal with other areas as they arise."

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