The leak of the Trans Pacific Partnership intellectual property chapter generated global coverage as full access to the proposed text provided a wake-up call on U.S. demands and the clear opposition from many TPP countries. My first post highlighted Canada’s opposition to many U.S. proposals, but nowhere is that more evident than in the section on Internet service provider liability. In fact, ISP liability in the TPP is shaping up to be a battle between Canada and the U.S., with countries lining up either in favour of a general notification obligation (Canada) or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking (U.S.).

The Canadian approach, which enjoys support from Chile, Brunei, New Zealand, Malaysia, Vietnam, Singapore, and Mexico, establishes a general obligation to limit liability for ISPs for infringements that occur on their networks (the U.S. and Australia oppose this approach, Japan and Peru are undecided). The Canadian proposal includes more detailed descriptions of the limitations of liability, an exclusion for services primarily for enabling infringement, and a reminder that ISP liability is still subject to copyright limitations and exceptions. Under the Canadian model, ISP limitation of liability is conditioned on creating a notification process and “legal incentives for ISPs to comply with these procedures or remedies against ISPs that fail to comply.”

The U.S. proposal, which enjoys support from Australia (and support for some provisions from Singapore, New Zealand, and Peru) features far more conditions for ISP limitation of liability that could lead to subscriber service termination and content blocking (Canada, Brunei, Vietnam, and Mexico oppose the approach). Under the U.S. model, specific actions are required for specific limitations of liability. For example, a limitation of liability for automated caching is subject to four requirements, including “removing or disabling access, on receipt of an effective notification of claimed infringement, to cached material that has been removed or access to which has been disabled at the originating site.” Limitation of liability for network storage or linking users to online sites are also subject to compliance with notifications.

However, all forms of ISP limitations of liability are subject to several additional conditions (which Malaysia and New Zealand oppose):

adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers

accommodating and not interfering with standard technical measures accepted in the Party’s territory that protect and identify copyrighted material, that are developed through an open, voluntary process by a broad consensus of interested parties, that are available on reasonable and nondiscriminatory terms, and that do not impose substantial costs on service providers or substantial burdens on their systems or networks.

In other words – subscriber termination and content blocking. Moreover, ISPs could be required to monitor their networks and seek out information on infringing activity if consistent with these technical measures.

The U.S. approach also requires a privacy override. While Canadian privacy law has established protections on disclosure of subscriber information, the U.S. model would require:

Each Party shall establish an administrative or judicial procedure enabling copyright owners who have given effective notification of claimed infringement to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.

On top of all this, the U.S. is seeking an annex to the chapter that specifies the requirements for effective notices. They are supported by Australia and Singapore. Opposition comes from Canada, Chile, Malaysia, New Zealand, Vietnam, Brunei, Mexico, and Peru.

From a Canadian perspective, the U.S. demands would require an overhaul of Canadian copyright law and potential changes to privacy law. For many other TPP countries, the issue is creating a clear divide, with the U.S. conditioning ISP safe harbours on subscriber termination and content blocking, while the Canadian model favours greater flexiblity in establishing systems that create incentives to address alleged infringements online.

