Canada Considers Making Caching Illegal

Matt O'Conner
OTTAWA CITY, Canada — Canadian Parliament soon will vote on a bill that could significantly increase copyright infringement claims against search engines and other sites that cache web pages.

According to its authors, C-60 was designed to protect search engines, Internet service providers and others from baseless lawsuits. But copyright experts are saying that careless wording and a lack of protection against false claims could cause more problems than the legislation solves.

“It’s a good idea in principle, but the fear is that it will be misused by rights holders and others,” Gwen Hinze, International affairs director of the Electronic Frontier Foundation, told XBiz.

Hinze said the issue is whether the bill is too narrowly worded to adequately balance the interests of copyright holders with the right of the public to have access to information online.

Copyright attorney Howard Knopf said he sees the danger to the public as greater than the danger to copyright holders. “The way it reads, arguably what they’re saying is that the very act of making a reproduction by way of caching is illegal,” Knopft said.

Several search engines already have been targeted by copyright holders who say the technology, by its very nature, infringes the 1996 World Intellectual Property Organizations treaty, the document that formed the basis for the U.S. Digital Millennium Copyright Act and similar laws in other countries.

In the past year, Perfect 10 magazine has filed suit against both Google and Amazon’s A9 search engine for allegedly infringing copyrights on its images. Agence France Presse also sued Google for $17.5 million, claiming the search engine is displaying photos, headlines and story leads on www.news.google.com without authorization or compensation.

University of Ottawa law professor Michael Geist said he expects such lawsuits will skyrocket if C-60 is passed. “Anyone with content on the web could sue,” he said. “Somebody with an axe to grind, or business competitors, could start using the system to try to get content removed.”

To date, there are no Canadian cases involving search engines being sued for copyright infringement, and Knopf said people who post information on the Internet without using robots.txt files, which tell search engines to stay away from certain content, are giving implied consent to have their content cached.

"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.