Internet Service Provider Liability for Copyright Infringement
33. An internet service provider ("ISP") typically facilitates access to the Internet through dial-up or fixed telecommunication links and provides related services. It is possible that ISPs (and providers of telecommunication services and other services) could in certain circumstances be liable under the current Act for both primary and secondary copyright infringement. For example, primary infringement could arise where an ISP duplicates a webpage (containing copyright material) without the permission of the copyright owner on their computer or server to make it available for a client on the Internet. Secondary infringement could potentially occur in cases where an ISP could be said to have authorised and provided the means for making infringing copies by users of its services.
34. Respondents generally agreed that ISPs should be liable in some circumstances. Most of these respondents considered that some sort of knowledge requirement or "notice and take down" provision would be useful in determining liability. A significant number (mostly educational institutions and some producers) explicitly stated that ISPs should not be liable for transient copying or caching.2
Of the respondents who commented on the issue of whether ISPs should be required to monitor material posted by their subscribers, most agreed that such a requirement would be impractical and costly given the volume of material which would have to be reviewed.
2An electronic cache is a means of temporarily storing files copied from another source. In the case of Internet applications, a cache is usually a section of magnetic disk storage which is used to store documents being transferred across the Internet. Such a cache is often used by an ISP to reduce the time and cost, and increase the reliability, of retrieval of information across the Internet. Caching is the process of storing files in a cache.
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