"A unique approach to the liability of P2P intermediaries" : a comparative study of copyright liability of providers of peer-to-peer file sharing services in Canada and Sweden
University of British Columbia
Master of Laws - LLM
Most comparative studies concerning copyright liability of Internet Service Providers (ISPs) look at the United States and a larger European country, such as France or the United Kingdom, the European Union generally, and/or an Asian country. Only a few comparative studies take into account the Canadian approach to ISP liability, and there is no comparative study dealing with Swedish ISP liability laws. Moreover, only a few studies in the field deal with copyright liability in the context of illegal file sharing. In an attempt to fill that gap in the literature, this thesis compares, by using a functional comparative methodology, the Swedish and Canadian ISP liability laws’ application to providers of peer-to-peer file sharing services (P2P intermediaries). The problem that this thesis seeks to address is this: To what extent may a P2P intermediary be held liable, under Swedish and Canadian law, for copyright infringement committed by those using its service, and what liability approach – the Swedish or Canadian – is the better one? The liability of P2P intermediaries under Swedish law depends on the Swedish doctrine on contributory liability in copyright law, as it was recently interpreted by the Swedish Court of Appeal in the law suit against The Pirate Bay – one of the world’s largest P2P intermediaries. By contrast, P2P intermediary liability in Canada is determined by the recently adopted Copyright Modernization Act, establishing unique concepts, such as liability for enabling copyright infringement, and a so called ‘notice and notice’ system under which ISPs must forward copyright owners’ notices of claimed infringement to its subscribers/users. Through a comparative analysis of: the Swedish doctrine on contributory copyright liability and the Canadian enabling provision; and the Canadian notice and notice system and the corresponding Swedish system addressing claims of copyright infringements from copyright owners, this thesis concludes that Canada offers a more effective, well-balanced and predictable liability standard and tool for curbing copyright infringement committed by means of illegal file sharing, than Sweden. It is therefore recommended that Sweden and other countries shift focus from the United States and European Union ISP liability laws to the unique Canadian approach.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Faculty of