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Copyright notice and notice regime to come into force

Image: Grant Cochrane | freedigitalphotos.net

Image: Grant Cochrane | freedigitalphotos.net

The Government of Canada has announced that the “Notice and Notice” regime established by Bill C-11, An Act to Amend the Copyright Act, is expected to come into force in January 2015. The amendments will provide for a mandatory notification scheme for online copyright infringement.

Once the Notice and Notice provisions come into force, an Internet intermediary, such as an Internet service provider (ISP), web hosting service, or Internet search engine, will be required to forward any notice of claimed copyright infringement to the allegedly infringing subscriber. The intermediary will also be required to alert the copyright owner once the notice has been forwarded – or to explain the reason it was not possible to forward the notice – and to retain records identifying the alleged infringer for a minimum of six months. In the event that the copyright owner brings an action against the alleged infringer, the intermediary will be required to retain these records for twelve months from the date the notice was received. The stated intent of the government is to provide copyright owners with an opportunity to seek a court order that would then mandate disclosure of the alleged infringer’s identity.

Copyright owners wishing to take advantage of the Notice and Notice regime must provide the relevant intermediary with a written notice of claimed infringement containing the following information:

a) The claimant’s name and address;

b) The work or subject matter being infringed;

c) The claimant’s interest with respect to the work or subject matter being infringed (e.g., if the claimant is the owner, author, or licensee);

d) The electronic location (e.g., website address) where the infringement is taking place; and

e) The date and time of the infringement.

An intermediary who fails to comply with the Notice and Notice scheme could be ordered to pay damages of $5,000 to $10,000. Further, if a search engine receives a notice of claimed infringement after the infringing work or subject matter has been taken down from the original location identified in the notice, it may be liable if it does not remove any cached version of the infringement from its search results within 30 days of receiving the notice.

The new Canadian Notice and Notice regime is notably different from its American equivalent, commonly called “Notice and Takedown”. Under the American Digital Millennium Copyright Act, once an online service provider has received a notice of claimed infringement it must expeditiously remove or disable access to the allegedly infringing material.

The coming into force of the Notice and Notice regime was initially postponed to allow for the adoption of regulations to further particularize the procedure for providing notice. However, following consultation with stakeholders, it now appears that the government has opted to bring the regime into force without adopting any regulations.

By Stéphane Caron, Kevin Sartorio & Julia Werneburg
Gowlings LLP

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