Online Infringement: Canadian "Notice and Notice" vs US "Notice and Takedown"

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News that Canadian band In-Flight Safety has been subject to postings of its songs on YouTube being removed by the service for purported copyright infringement ("Maritime band battles to keep music on YouTube") means a timely opportunity to consider the differences between Canadian and US copyright law when it comes to infringing content online. In short, this post will discuss the differences between Canada's "notice and notice" regime (which will soon become law with the passage and proclamation into force of Bill C-11 (The Copyright Modernization Act) and the United States' "notice and takedown" regime. The differences are fairly radical and important for content owners to understand.

US copyright law contains what is referred to as a "notice and takedown" regime - spelling that out a little bit, it means that "when an online service provider receives a notice that infringing content has been made available on its service, it must move expeditiously to take down (i.e., remove from the internet) the infringing content". By contrast, Canadian copyright imposes no comparable obligation on online service providers - instead, once Bill C-11 is passed, Canadian copyright law will contain a "notice and notice" regime; that means that "when an online service provider receives a notice that infringing content has been made available on its service, it must provide notice to the subscriber who is responsible for the posting of the relevant content".

What are the mechanics of the different regimes? In the US, the Digital Millennium Copyright Act of 1998 introduced Section 512(c) into US copyright law - 512(c) does something relatively clever: it provides a "safe harbour" for online service providers (meaning that they will not be held liable for copyright infringement) but only if they abide by their "notice and takedown" obligations. In other words, in order for, say, an ISP or a service like YouTube to avoid liability for copyright infringement, they need to have in place a mechanism for the receipt of "takedown notices" and for then "expeditiously" removing or disabling access to purportedly infringing content upon receipt of the notice. Section 512(c)(3) sets out the required elements for an effective notice of claimed infringement. Because YouTube is hosted in the United States, the removal of In-Flight Safety's videos is arising as a result of this "notice and takedown" process (the DMCA also provides for a "counter notification" process whereby someone can dispute whether their posted content should have been removed). (For more information about the DMCA "notice and takedown" regime, see generally Jonathan Bailey's Plagiarism Today site, particularly this FAQ.)

How does the Canadian landscape compare? To the present time, Canada's Copyright Act has contained nothing even remotely similar to the DMCA's "notice and takedown" mechanism. Instead, Canadian online service providers have organically developed an informal "notice and notice" mechanism: if you send them a notice of claimed infringement, they will generally respond by passing along that notice to the person who posted the purportedly infringing content - but whether they do that, and whether they take any further action, is mostly pretty much up to the individual service provider. As an example, the Acceptable Use Policy of Rogers Communications (one of the dominant Canadian ISPs) states that uploading content which infringes the copyright of another is a "prohibited activity", and that Rogers reserves the right to "take any responsive actions they deem appropriate" upon a violation of the AUP - but that they "prefer to advise subscribers of inappropriate behavior and any necessary corrective action", rather than remove or disable access to content.

Needless to say, the position adopted by Canadian ISPs, arising as it did in something of a legal vacuum, was somewhat controversial (particularly for content owners). The precise contours of liability under Canadian copyright law for hosting or otherwise providing access to infringing content were unclear - about the closest we got to a definitive statement was an off-hand reference in a Supreme Court of Canada decision that "copyright liability may well attach if the activities of the Internet Service Provider cease to be content neutral, e.g. if it has notice that a content provider has posted infringing material on its system and fails to take remedial action" (Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 at para. 124).

The ambiguity is about to come to an end: with the enactment of Bill C-11 (The Copyright Modernization Act) (which should be happening any day now), Canada's copyright law will enjoy new "safe harbours" for online service providers and a formalized "notice and notice" mechanism. New Sections 41.25 - 41.27 of the Copyright Act (Canada) create a process by which aggrieved parties can send a notice of infringement to online service providers, and the recipient must "as soon as feasible forward the notice electronically to the person to whom the electronic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it". Thus, get a notice, give a notice - and that's pretty much it. Online service providers will still retain the discretion to remove purportedly infringing content, but the Copyright Act will not require them to do so.

The most interesting thing about Bill C-11 and its "notice and notice" mechanism is that, unlike the situation under the DMCA in the US, the regime is completely decoupled from the "safe harbours" - in the US, to enjoy immunity from liability, you need to comply with your "notice and takedown" obligations, but under imminent Canadian law, online service providers will enjoy the benefit of the new safe harbours completely independently of whether they abide by their "notice and notice" obligations. The only liability arising out of a failure to abide by "notice and notice" obligations (i.e., failing to pass along a notice or explaining why they were unable to do so) will be liability for statutory damages between $5,000 - $10,000 (as set out in new Section 41.26(3)).

With the passage of Bill C-11, Canada will finally have a measure of certainty about liability for the online infringement of copyrighted materials, though it is worth emphasizing that the mechanism being created is markedly different from that found in the United States. It is also worth emphasizing just how completely divorced are the issues of liability for infringement and obligations arising upon receipt of a notice of infringement. The extent to which the new regime will address existing concerns remains, of course, to be seen.

 

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