The legislation in question, Bill C-60, is designed to amend Canada's Copyright Act by implementing parts of the 1996 World Intellectual Property Organization treaty, the treaty that led to the Digital Millennium Copyright Act in the U.S.
Set for debate and an initial vote in the House of Commons after Parliament's summer break, C-60 addresses things such as file-sharing, anticopying devices and the liability of Internet service providers and in ways favorable to record labels and movie studios.
But according to Howard Knopf, a copyright attorney at the Ottawa firm of Macera & Jarzyna, a brief passage in the bill could mean trouble for search engines and other companies that archive or cache Web content.
"The way it reads, arguably what they're saying is that the very act of making a reproduction by way of caching is illegal," Knopf said.
Michael Geist, a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-Commerce Law, agreed.
"Anyone with content on the Web could sue," and anyone caching content on the Internet could be sued, said Geist, who wrote about perils with C-60 when it was introduced. "Somebody with an ax to grind, or business competitors, could start using the system to try to get content removed." The bill provides no deterrent to making false copyright-infringement claims, he said.
Such copyright issues remain a hot topic in the United States, where search engines have found themselves subjected to a litany of infringement complaints, particularly as they expand the types of content they make searchable on the Web.
Google has pulled links to Web sites that the controversial and litigious. The search giant was also users had uploaded and has also for its plan to digitize library collections. Amazon.com was recently over photos in its images database, and Google was sued by the same company.
The concern over C-60 involves a section of the bill that deals with remedies open to copyright holders. That section contains the following language: "...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."
A government official from one of the departments that wrote C-60 said the section is meant to provide more protection for search engines. Under current Canadian law, copyright holders can sue companies they believe are reproducing their material without authorization. Though common practice is to send the alleged copyright infringer a cease-and-desist notice, such a warning is not now required under law, said Albert Cloutier, acting director of the Intellectual Property Policy Directorate at Industry Canada.
Under Bill C-60, copyright holders could sue for monetary damages only after giving notice. Before such notification, they'd be limited to seeking an injunction. The bill does not change the circumstances or terms for establishing copyright infringement, Cloutier said.
Chilling Effects Clearinghouse
"We're saying that in cases where there is copyright infringement there is a safe harbor," Cloutier said.
Knopf said he believed the intent of the search engine provisions was to provide a partial safe harbor, but he said that due to "drafting issues"--in other words, careless language--he's concerned the effect may be the opposite, muddling one of the Web's prime paradigms.
"If you put stuff freely on the Internet and don't take available steps to control archiving...you have to expect that people are going to browse, print or save it and that Google is going to cache it and archive.org is going to archive it," Knopf said.
Existing law is unclear as to whether people who post information on the Internet have given implied permission to search engines for caching purposes, Cloutier said.
So far, there have been no cases in Canada of search engines being sued for copyright infringement, Cloutier and the lawyers said. However, "theoretically (they) could be liable for infringement. We don't know how the Canadian courts will treat the activity under current law," Geist said.
Regardless, even a provision like that in Bill C-60 wouldn't necessarily put search engines out of business in Canada; they could tailor their services to meet the law, as they do with legislation in other countries. For instance, Googlein Germany.
Besides, C-60 remains a bill, and the wording that worries Knopf and Geist could be changed in committee, Cloutier said. After the first vote in the House of Commons, the bill goes to committee for debate and revision before being sent back to the House for a final vote and, if it passes, to the Senate.
Both attorneys are hopeful corrections or clarification can be made before the bill becomes law. Otherwise, Knopf said, a can of worms could open--not just for major search engines such as Google and Yahoo but also for smaller sites such as the Internet Archive's Wayback Machine, a searchable repository of old versions of Web sites created as a nonprofit public service.
"It could be a problem if it goes into law in a vague way and causes search engines to think there is a risk (and)...to cut back on their activities," said Wendy Seltzer, founder of the Chilling Effects Clearinghouse, a nonprofit legal-information project involving the Electronic Frontier Foundation, Harvard University and others. "The public as a whole loses if we lose the ability to see what's being made available online."