By far the most problematic aspect of the ILT provision is the creation of a notice-and-takedown system for search engines. Unlike ISPs - who are subject to the more-balanced notice-and-notice approach - ILTs are effectively subject to a notice-and-takedown system without any of the counter-notification or balancing provisions contained in the U.S. DMCA. Bill C-61 creates a parallel notice and takedown system for ILTs since section 41.27(2)(f) limits the availability of the safe harbour to instances where no notification of copyright infringement has been received. This will effectively force ILTs to remove content upon notification since failure to do so risks potential liability.
While a notice-and-takedown approach for ILTs is bad enough, it is made worse by the absence of any balancing provisions. For example, the U.S. DMCA includes a "counter-notification" provision that allows for the re-posting of content that has been taken down. There is no such provision in C-61, meaning that the ILT provisions are ripe for abuse. Consider the possibility of a company sending out notifications to a search engine to remove some of their competitors' pages from the search database. The search engine is likely to remove the results in order to qualify for the safe harbour, regardless of the merits of the claim. There are benefits to creating an ILT safe harbour, but this particular implementation requires amendment by removing the notice-and-takedown requirement.
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