Canada’s New “Notice and Notice” Copyright Enforcement Regime

By January of 2015, Canada will have implemented the final pieces of the Copyright Modernization Act - Canada’s answer to bringing copyright laws in line with the digital age. This has been an ongoing process since 2012 and was initiated as a response to criticism that Canada’s copyright system was not doing enough to protect the rights of copyright owners. The Act has already brought sweeping changes to copyright in relation to fair dealing exceptions, “user generated content” and statutory damages. See our earlier blog post, Canada’s Copyright Modernization Act. One particular change that will be coming into force in the new year is Canada’s new “Notice and Notice” regime, a unique “made in Canada” mechanism for engaging Internet intermediaries in policing online copyright infringement. The United States recognized the need for such a mechanism years ago and introduced a “Notice and Takedown” procedure through the Digital Millennium Copyright Act. In short, the mechanism allows copyright owners to contact an Internet service provider (ISP) when they believe that someone is using the ISP to infringe copyright in their content. Upon receiving notice, the ISP must take down the alleged infringing material or risk liability for authorizing copyright infringement. If you were to search Google for copyrighted material that was being hosted illegally (without the permission of the copyright holder) the following message might appear at the bottom of the page: “In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed [X] result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at….” Canada’s “Notice and Notice” mechanism operates with a major distinction. In Canada, when a complaint is filed with an ISP in regards to alleged infringing use of copyrighted material, the mechanism will require the ISP to simply notify the alleged infringer (typically, the ISP’s customer) of the complaint and to retain a record of the notification for 6 months. Where legal proceedings are commenced against the alleged infringer, the ISP must retain its records for 12 months. If the ISP fails to do so, it will lose its “safe harbor” from liability for authorizing infringement. For Canadian copyright owners, “Notice and Notice” significantly improves their ability to enforce their rights online, particularly against infringers who are difficult to track down. However, by not requiring an ISP to remove allegedly infringing material, it does not go nearly as far as the American legislation. Instead, it functions more as an evidentiary tool, to allow copyright owners to prove that the infringement was deliberate – at least, if it continues after the notice is received. As such, it also provides greater opportunities to recover increased damages for willful infringement.