Meera Nair


In Posts on April 23, 2011 at 2:36 pm

The International Music Score Library Project has been described as the largest collection of public domain musical scores in the world. Established in Canada in 2006, the site was staffed entirely by volunteers who carefully vetted contributions for copyright compliance. Yet in 2007 the site was threatened with severe penalties by European music publishers who were concerned that IMSLP material would surface in Europe. At issue was the distinction of a public domain set by life plus fifty years in Canada, as compared to the European public domain of life plus seventy years. IMSLP shut itself down, but resurfaced a year later and continues to thrive. I previously wrote about IMSLP here.

Two days ago Michael Geist brought us news of more challenges for IMSLP. A music publishers’ association (based in the U.K.) succeeded in removing access to the site, by way of the notice-and-takedown provision of the United States’ Digital Millennium Copyright Act (DMCA). That provision of American law allows Internet Service Providers to be sheltered from liability for the conduct of their subscribers. In principle, this is good; ISPs are integral to the operation of our connected, digital world. In 2004 the Canadian Supreme Court emphasized the importance of keeping ISPs in a neutral position:

Parliament made a policy distinction between those who abuse the Internet to obtain “cheap music” and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth (para. 131).

However, American policy has placed their ISPs in a less-than-neutral stance. To be immune from liability an ISP must, upon receiving notice of alleged infringement, immediately remove the offending material or possibly cut-off the subscriber. There is no due process. It is a guilty verdict first, then followed by defense (if the subscriber is knowledgeable enough to present one.)

As Michael Geist points out, we are fortunate that Bill C-32 did not propose such an extreme measure. Instead, C-32 adopted an existing system of notice-and-notice. A Canadian ISP maintains its neutrality by forwarding on a notice of complaint to the subscriber. Some measure of record-keeping is in order and ISPs are in favour of maintaining this system. During the Legislative Committee Meetings on Bill C-32, Pam Dinsmore (VP, Regulatory/Cable, for Rogers Communication Inc.) said:

In our view, notice and notice is the best and fairest way to make individuals aware that they are accused of illegal peer-to-peer file sharing while recognizing that ISPs should not unduly interfere with our customers’ online activities. While we recognize that the regime is not perfect, we believe it does result in discouraging repeat offenders. The fact that some European countries are beginning to consider notice and notice as a valid response to illegal file sharing and that some ISPs in the U.S. have notice and notice agreements with rights owners serves to underscore that Canadian ISPs have been ahead of the curve …

Later in that meeting, MPs were presented with data illustrating the effectiveness of the notice-and-notice process. Michael Geist summarized some of that discussion here.

But for all of the merit of notice-and-notice in Canada, IMSLP was still at the mercy of the DMCA. Reason being, IMSLP’s domain name is registered through an American-based company and that is where the notice was sent. IMSLP very competently dealt with the frivolous claims, and the site is accessible again. But it is a troubling reminder of the challenges that can arise for any blog, business, or artistic endeavor that has an Internet presence.

  1. My hope is that people providing services where the legal jurisdiction matters will pay closer attention to the country their services come from. In my case I favour Canadian providers for a wide variety of reasons, and use (Headquarters in Toronto) for my domain registration services and most of my DNS hosting.

    (Note: Not affiliated with other than being a customer).

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s