Page 83 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 3 Copyright Rules for Online Intermediaries: From Safe Harbour to a New Intermediary Liability Scheme
An Intermediary-oriented Approach

than effectively controlling users’ copyright-infringing activities, Sharman authorised
147
copyright infringement by KaZaA users. Subsequently, Australia has applied the pro-
copyright owners’ policy to other famous P2P cases, such as Dallas Buyers v. iiNet and
Roadshow Films v. Telstra. 148
Unlike the US and Australian courts, the Canadian courts have adopted a more ISP-
friendly policy. Two landmark cases issued by the Canada Supreme Court, SOCAN v.
149
150
Canadian Assn. of Internet Providers and CCH v. LSUC, held that an ISP would not be
liable for users’ infringing activities. In SOCAN v. Canadian Assn. of Internet Providers,
the copyright owners’ association argued that the defendant P2P provider was not merely
a conduit but was itself engaging in communicating the information, and thus could not be
151
shielded by the statutory exemption. However, the Supreme Court clarified that ‘supply[ing]
software and hardware that enhances the speed of communication and reduces the cost to
the Internet access provider’ was necessary for providing files transmission service, and
152
therefore did not affect the ISP’s statutory exemption from liability. The ISP’s lack of
actual knowledge of the infringing activities and the impracticability (both technical and
economic) of monitoring the vast amount of transmitted material were found to be the
attributes of a conduit that enjoyed an exemption from liability.
The Chief Justice of Canada delivered the unanimous Supreme Court decision in CCH
v. LSUC, explicitly opposing the Australian court’s pro-copyright owners policy, stating that:
‘[T]he [Australian] approach to authorisation shifts the balance in copyright too far in favour
of the owner's rights and unnecessarily interferes with the proper use of copyrighted works
for the good of society as a whole’. The Supreme Court of Canada found that providing
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access to a machine that could be used to infringe copyright was not enough to establish
‘authorisation’ with liability. Nevertheless, it left room for future cases to deny ISPs’ safe
154
harbour privilege by stating that a service provider would be held liable if it had a certain
relationship with or a certain degree of control over the direct infringer.
155
The above described Canadian cases were widely followed, including in EMI Records

147 Ibid 112.
148 Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317; Roadshow Films Pty Ltd v Telstra Corporation Ltd. [2016] FCA
1503.
149 Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers 2 S.C.R. 427, 2004
SCC 45.
150 CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13.
151 Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers 2 S.C.R. 427, 2004
SCC 45.
152 Ibid.
153 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 CSC 13; [2004] 1 C.S. R. 339, para 41.
154 Ibid para 42.
155 Ibid para 38.

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