Copyright Owners and (Downloading) Users Take Note: Canada’s Formal Notice and Notice Regime is in Force

Canadian copyright law is primarily governed by the federal Copyright Act, R.S.C. 1985, c. C-42 (the “Act”). The Act was subject to some significant amendments by the Copyright Modernization Act, S.C. 2012, c. 20 (the “CMA”), and while most of the changes made by the CMA have already been in force for some time, the notice and notice regime created by the CMA for allegations of infringement only came into force in January 2015.

The Canadian government’s stated aim for the notice and notice regime that is now in force is to formalize what had, up until now, essentially been a voluntary system. Under the old voluntary system, copyright owners would typically identify the alleged infringers by their internet protocol or IP address and then make requests to intermediaries (internet service providers and web hosts) to send notices of alleged copyright infringement to the customers or users of the intermediary who were alleged to have infringed copyright (e.g. by downloading content illegally). As this was a voluntary system, there was no requirement to forward a notice and the parties could, for example, agree that the copyright owner would pay the intermediary for the reasonable costs of forwarding a notice or that the intermediary would only forward a notice that was ‘reasonable’.

The formal Canadian regime that is now in force requires intermediaries to electronically forward notices of alleged copyright infringement “as soon as feasible” or face the sanction of statutory damages (as discussed below). Notices must be forwarded provided certain conditions and requirements are met by the copyright owner (or claimant) making the request and intermediaries must inform the claimant that the forwarding has occurred. Where the intermediary is unable to forward the notice, it must tell the claimant the reason why it was unable to do so.
To be valid, a written notice by a claimant and delivered to an intermediary must:

• list the claimant’s name and address;
• identify the material being alleged to be infringed;
• specify the claimant’s interests or rights in that material;
• specify the location data for the electronic location relating to the alleged infringement;
• specify the infringement that is claimed; and
• specify the date and time when the alleged infringement occurred.

The government may prescribe the actual form the notice must take by regulations, but currently has not done so and thus just the aforementioned requirements must be met for a notice to be valid.
In addition to forwarding each notice, intermediaries must keep records sufficient to identify the person to whom the aforementioned electronic location belongs (i.e. to whom the notice was forwarded) for at least 6 months; where a claimant commences legal action in respect of a notice that was so forwarded and informs the intermediary of this, the intermediary must keep these records for at least one year. This record keeping is important as there is no automatic disclosure requirement on the part of the intermediary to the claimant and generally a Court Order would be required for such disclosure; this is seen as a balance under the regime of the privacy interests of those that are merely alleged to have infringed.

It is also important to note that the formal regime does not currently allow intermediaries to charge claimants a fee to cover the costs of forwarding a notice (subject to regulations, it is possible that fees may be allowed in the future). The intermediaries do, however, still face the sanction of statutory damages payable to claimants of at least $5,000, but not exceeding $10,000 (the actual amount is to be determined by a Court) if they do not forward a notice, or do not explain why they are unable to do so. So long as the intermediaries comply with their obligations, they effectively have a ‘safe harbour’ against liability for copyright infringement in relation to the acts covered by the notice.

From the perspective of a copyright user and someone that may potentially receive a notice, it should be remembered that the mere receipt of a notice does not automatically establish liability for them (it is just an allegation) as the claimant must still obtain a Court Order to gain disclosure of their identity and then to pursue formal legal proceedings to establish liability. While the expectation is that, in many cases, notices will be used as an educational tool and to deter future infringement by casual infringers, or to make reasonable demands against infringers, the new regime is certainly open to potential abuse. This is because the content of the notices do not need to pass any test, beyond meeting the limited aforementioned requirements and intermediaries do not have any discretion to ‘vet’ the notice substantively. Thus, notices making dubious claims and unreasonable demands may also be seen (e.g. a claimant may make a dubious allegation and demand payment from the recipients to absolve themselves of potential liability…all before any liability has been established).

Lastly, while a copyright owner can also send a notice to an “information location tool” (e.g. search engines), such tools are merely required to remove any temporary copies (e.g. cached copies, etc.) they may have generated of the allegedly infringing material within 30 days to avail the safe harbour against infringement, provided the material has also been removed from the original allegedly infringing location. This is the limited ‘takedown’ available under the Canadian regime (our friends south of the border, in the United States, are familiar with the more expansive takedown regime there and should keep in mind the Canadian notice regime is different).

Time will tell if the new formalized regime lives up to its promise of better protecting copyright, or if its loopholes lead to it collapsing under the weight of spurious notices.

For questions on Canadian copyright law, including Canada’s new notice and notice regime, acquiring, registering, transferring, licensing or enforcing copyrights, or other aspects of Canadian intellectual property law, please contact any of the authors or another member of Cox & Palmer’s Intellectual Property & Technology team.