Shoutbox

Could it be possible that Canada will make Google or any other Internet search and archiving engines illegal?

Bill C-60, which amends the Copyright Act and received its first reading in the House of Commons on June 20, suggests it could be illegal for anyone to provide copyrighted information through "information-location tools," which includes search engines.

Ottawa copyright lawyer Howard Knopf, of the law firm of Macera & Jarzyna Moffat & Co., has been poring over the bill since it was tabled, and says he was startled to discover the potentially negative effect of Bill C-60's provisions on "information location tools."

The phrasing of the proposed law is difficult, Mr. Knopf says, because at first glance it seems to be a helpful provision in that it limits the liability of companies such as Google to no more than an injunction when they have not received actual notice of infringement. But then the language of the bill works on the assumption that the search engine itself is capable of infringing copyright by having archived copyright material on it.

Section 40.3 (1) of the bill states that "the owner of copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of information location tools who infringes that copyright by making or caching a reproduction of the work or other subject matter."

That section, he says, implies that "information location tools" would infringe copyright if they archive any material that is copyright, not just material that is itself infringing

The bill defines information location tools as "any instrument through which one can locate information that is available by means of the Internet or any other digital network."

Search engines in the United States, Mr. Knopf says, have been tested to some extent on this issue, notably for the use of thumbnail photographs. The courts have been leaning in the direction of finding that the material on them is intended for "fair use," meaning it is not in competition with any copyright work.

But Bill C-60 suggests that Parliament considers such archiving activity is illegal.

"Not all people agree with me," says Mr. Knopf. But he adds that either way it is interpreted, it could lead to a court case.

"The way it is drafted strongly suggests that the reproduction and caching activity done by Google or the Wayback Machine at archive.org and similar essential research tools would be illegal in Canada," he says. "It could be read by a court as a 'deeming' provision, which was hopefully not the intention."

But "if the provision is intended to shelter the providers of 'information location tools,' it might have the opposite effect and end up being a Trojan Horse. At the very least, it could turn search and archive engine providers into enforcers for alleged copyright owners, some of whom will surely use their notice powers for abusive purposes. Or it may be a wedge for yet another instance of a tariff to be collected by an aggressive copyright collective."

But, cautions Mr. Knopf, Bill C-60 has received first reading only, and that "there"s a lot of time for them to take this out or to fix it."

He warns that "we shouldn't cripple the Googles of the world by imposing copyright chill on the very basis of their architecture. In fact, they perform a very useful service to copyright owners by enabling easy detection of infringement. The owners should go after the actual infringer, rather than effectively shooting the messenger."


SOURCE: http://www.theglobeandmail.com/servlet/story/RTGA...gy/?query=googling