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Free Expression, Open Internet

Shielding the Messengers: (Court-Ordered) Notice-and-Takedown, the Chilean Approach

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today–a platform where diverse content and free expression thrive–would not exist.

In 2010, Chile updated its copyright law with a novel approach for protecting Internet intermediaries from liability for their users’ copyright infringement.  Though modeled on the US Digital Millennium Copyright Act (DMCA), the law differs in one crucial respect: While a cornerstone of the US law is its private notice-and-takedown system, the Chilean law requires that rightsholders secure a court order before content must be taken down.

Today, CDT released a short report on the Chilean law, examining the balance the law strikes among the rights of copyright-holders, intermediaries, and Internet users.  As we explain in the paper, the law offers greater certainty to intermediaries as to when content should be removed, and court oversight may well prevent some of the mistakes we have seen under the US system.

On the other hand, some rightsholders have expressed dissatisfaction with the law, since having to go to court significantly raises the burden on them when requesting takedowns.  Despite these objections, the Chilean Congress repeatedly rejected amendments that would have allowed for DMCA-style private takedowns, believing that the approach of relying on court orders was best for ensuring Internet users’ constitutional rights were protected.

CDT believes the balance struck by the DMCA remains viable in many respects. (We do, however, caution against extending the DMCA’s notice-and-takedown regime beyond copyright.)  Nonetheless, the Chilean law has provided an important and interesting new model worth considering.  It remains to be seen as courts implement the law whether it does in practice provide reasonable protection for rightsholders, intermediaries, and users.  Anecdotally, we have heard from colleagues in Chile that no one has sought a court order.  Instead, it seems rightsholders may be taking advantage of notice-forwarding requirements (see below) in the law to communicate directly with users to request the removal of infringing content.

Notice-forwarding requirements, whereby ISPs and content hosts are required to pass along notices of apparent or alleged infringement to subscribers, present yet a third model for dealing with online copyright infringement.  As CDT commented when US ISPs announced the Copyright Alert System, notice-forwarding can serve an important educational function and has the potential to deter a significant portion of online infringement.  Canada’s copyright reform act, passed earlier this summer, followed this approach.  We’re currently reviewing the law, and it will be the subject of a future report.