Brief to Industry Canada
The Cyberspace Is Not A "No Law Land":
A Study Of The Issues Of Liability For Content Circulating On The Internet
November 16, 1997
Introduction
The Canadian Association of Research Libraries/Association des bibliotheques de recherche du Canada (hereafter CARL/ABRC) represents Canada's major research libraries.
The mission of CARL/ABRC is to provide leadership to the Canadian academic research library community through enhancing scholarly communication and through assisting its members to provide full support for postgraduate study and research.
The Context
The CARL/ABRC Policy Statement on Freedom of Expression (Attached) states that "it is the responsibility of research libraries to facilitate access to all expressions of knowledge, opinion, intellectual activity and creativity from all periods of history to the current era, including those which some may consider unconventional, unpopular, unorthodox or unacceptable."
This responsiblity, together with the values of freedom of expression, academic freedom, privacy and confidentiality, are fundamental to our response to statements in The Cyberspace Is Not A "No Law Land" (hereafter, "the Study").
The afore-mentioned statements indicate areas in which research libraries could be held liable in the normal course of providing access to information. These are specifically: Criminal Code provisions in such matters as obscenity Civil liability in matters such as defamation, and Intellectual Property issues such as caching and browsing.
Criminal Code and Civil Liability
The CARL/ABRC Freedom of Expression Statement recognizes "that withdrawal of material from the collection... on the basis of content is an extremely serious matter, clearly having the potential of contravening the... Statement...." At the same time, research libraries accept fully their responsiblity to comply with the law. Consequently, research libraries resist censorship of/restriction of access to material on the basis of individual complaints. Instead, we rely on the rulings of the judicial system as to whether material subject to complaint must be removed.
Comments in the Study that internet service providers might limit their liability through due diligence actions such as removal of potentially offending material, or blocking access to certain sites that could give rise to liability, are cause for concern. Such self- censorship would have the effect of restricting freedom of expression and academic freedom without giving the parties involved access to the judicial system, where the issue can be tested.
We acknowledge that if notice is given that material is potentially offending there may be an obligation on the research library in question to investigate the matter. There is certainly a relationship between the level of control and knowledge of possible infringement that a library may be expected to exercise. However if the library, as intermediary, is an unwitting offender, it should not be held liable in such a case.
Intellectual Property in the Digital Environment
While we understand the argument that browsing and caching technically may be found in a Canadian court of law to be acts of reproduction, there should be a distinction between an incidental copy for reasons of network or personal workstation operation and the making of a permanent copy.
Furthermore, given the rapid evolution of technology in this area, it would seem unproductive to try to define how this area should operate. Rather, the onus should rest with the originator or the provider of the networked document to indicate the conditions under which it may be used.
CARL/ABRC would urge that the Copyright Act be amended to provide the right to make ephemeral incidental copies that are invisible to the user where such incidental copies are merely the consequence of the manner in which a particular computer software product is designed and written.
Conclusion
With respect to potential Criminal Code and civil liability in the areas described in 'The Cyberspace Is Not A "No Law" Land' Study, CARL/ABRC believes that the statutes, regulations and private remedies that will apply to its members in their role as intermediaries in the provision of content on the Internet should reflect the values of freedom of expression as described in the Charter of Rights and Freedoms as well as the values of academic freedom and privacy.
Appropriate enforcement mechanisms should be injunctive and applied only after due process has been followed through inquiries into the nature of a particular complaint.
With respect to copyright in the digital environment, CARL/ABRC supports the view of the Canadian Library Association that copyright should be technologically neutral. The concept of copying should be the same as it is in the print environment: the copy should be fixed, permanent and tangible. Unless an author issues explicit restrictions ,the browsing of materials in electronic format should be generally permissible.
CARL/ABRC has been an active participant throughout the process of the Phase II revisions of the Copyright Act.
Together with other Associations such as the Canadian Library Association ( CLA)and the Association of Universities and Colleges of Canada (AUCC) with whom we have similar interests, CARL/ABRC will continue to work to ensure that there is an appropriate balance between public access to information through legislated exceptions and through the defence of fair dealing, and the right of copyright holders to be remunerated for the use of their work.
Attachment : Freedom of Expression (REV. 01/89)
All persons in Canada have a fundamental right, as embodied in the Charter of Rights and Freedoms and the Bill of Rights, to have access to all expressions of knowledge, creativity and intellectual activity.
It is the responsibility of research libraries to facilitate access to all expressions of knowledge, opinion, intellectual activity and creativity from all periods of history to the current era including those which some may consider unconventional, unpopular, unorthodox or unacceptable.
To this end research libraries shall acquire and make available, through purchase or resource sharing, the widest variety of materials that support the scholarly pursuits of their communities.
