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: Michael Geist

61 Reforms to C-61, Day 43: ILTs - Safe Harbour Largely Illusory

By Michael Geist

The inclusion of provisions for "Information Location Tool Providers" - ie. search engines - was a bit of a surprise.  The ILT provisions unexpectedly appeared in Bill C-60 and there were concerns expressed with the approach adopted by the government.  ILT provisions are back in C-61 with the focus on providing a legal safe harbour for search engines.  The approach is to remove financial liability for ILTs for reproducing or communicating a work provided that they meet certain conditions. 

While that makes sense, the implementation leaves much to be desired.  Indeed, as currently worded most search engines would not qualify for the safe harbour.   Section 41.27(2) provides that ILTs only qualify for the safe harbour if they meet six conditions.  These include:

• makes and caches a reproduction in an automated fashion as an ILT
• communicates the reproduction to the public
• does not modify the reproduction
• complies with any terms set by the copyright owner (ie. if the owner specifies no caching, the ILT must respect that choice)
• does not interfere with the lawful use of technology to obtain data on the use of the work
• has not received a notice-and-notice claim

I will discuss the final condition - which effectively creates a notice-and-takedown system for ILTs - tomorrow.  For the moment, it is worth noting that given the common ILT practice of reducing or eliminating large image files, this condition may severely undermine the usefulness of the safe harbour provision.  In many instances, it is efficient for ILTs to reduce image size, yet that modification would carry legal consequences of failing to qualify for the safe harbour.

Full post as published by Michael Geist on August 20, 2008 (boomark / email).