• Notice and Notice Regime for Internet Copyright Infringement
  • April 9, 2015 | Author: Bradley J. Freedman
  • Law Firm: Borden Ladner Gervais LLP - Vancouver Office
  • Canada’s new “notice and notice” regime for Internet copyright infringement (Copyright Act ss. 41.25, 41.26 and 41.27(3)) came into force on January 2, 2015. The notice and notice regime is the final step in implementing the Copyright Modernization Act, S.C. 2012, c. 20, which was enacted to, among other things, address the challenges and opportunities presented by the Internet, align Canadian copyright law with international standards, and clarify Internet service providers’ liability for copyright infringement. Most of the Copyright Modernization Act came into effect in November 2012, including amendments to the Copyright Act (ss. 31.1 and 41.27) that provide certain Internet intermediaries with limited safe harbours against copyright infringement liability.

    The notice and notice regime is described by the Canadian government as a “made-in-Canada” solution that is “intended to discourage online copyright infringement by providing copyright owners with a tool to enforce their rights, while also respecting the interests and freedoms of users”. The regime imposes obligations and potential liabilities on Internet intermediaries who receive a prescribed form of notice that they are facilitating Internet-related copyright infringement. Following is a summary:

    • Internet Intermediaries: An owner of copyright in a work or other subject-matter may send a notice of claimed infringement to a person who provides any of the following: (1) Internet access to the electronic location that is the subject of the infringement claim (i.e. a network services provider); (2) digital memory that is used for the electronic location that is the subject of the infringement claim (i.e. a storage services provider); or (3) an information location tool (i.e. a search engine provider).
    • Notice Form/Content: A notice of claimed copyright infringement must be in writing and contain the following information: (1) the claimant’s name and address; (2) the work or other subject-matter to which the claimed infringement relates; (3) the claimant’s interest or right with respect to copyright in the work or other subject-matter; (4) location data for the electronic location to which the claimed infringement relates; (5) the infringement that is claimed; and (f) the date and time of the claimed infringement.
    • Network Service Providers and Storage Service Providers: A network service provider or storage service provider who receives a proper notice of claimed copyright infringement is obligated to: (1) as soon as feasible forward the notice electronically to the person to whom the electronic location identified in the notice belongs; (2) inform the claimant of the forwarding of the notice or, if applicable, of the reason why it was not possible to forward the notice; and (3) retain records that will allow for identification of the person to whom the electronic location identified in the notice belongs, for either: (a) six months from the day on which the infringement notice is received; or (b) if the claimant gives notice of commencement of infringement proceedings regarding the claimed infringement within that first six month period, then for one year from the day on which the infringement notice is received. A network service provider or storage service provider is not entitled to charge a fee for complying with the notice and notice regime. A claimant’s only remedy against a network service provider or storage service provider who fails to properly respond to a notice of claimed infringement is statutory damages in an amount of no less than $5,000 and no more than $10,000.
    • Search Engine Providers: If a claimant gives proper notice of claimed copyright infringement of a work or other subject-matter to a search engine provider after the work or subject-matter has been removed from the electronic location specified in the notice, then the safe harbour protections that apply to search engine providers will only provide protection in respect of the search engine providers’ reproduction of the work for the purpose of operating the search engine for thirty days after the notice is received. Search engine providers are not obligated to forward a notice of claimed copyright infringement to the alleged infringer.