In a statement dated June 17, 2014, the Canadian government announced the coming into force of Canada’s new Notice and Notice regime, included as part of The Copyright Modernization Act (which provides for the most recent amendments to Canada’s Copyright Act). The announcement provides that the Notice and Notice regime (i.e., new sections 41.25, 41.26 and 41.27(3) will come into force six months following publication of the Order in Council (the precise date of which is yet to be determined).
Although most sections of The Copyright Modernization Act came into force on November 7, 2012, the coming into force of the Notice and Notice regime was delayed “in order to consider a regulatory process” (see Order SI/2012-85 dated October 25, 2012). However, the June 17 announcement made clear that no regulations will be implemented in connection with this regime, instead stating that “the [Copyright] Act provides sufficient flexibility for the Notice and Notice regime to function without regulations.”
According to the backgrounder published with the announcement, The Copyright Modernization Act will be fully in force by January 2015, two and a half years after it received royal assent on June 29, 2012. This suggests that the Order in Council to bring into force the Notice and Notice regime is imminent.
The Notice and Notice Regime
Generally stated, the Notice and Notice regime engages four groups:
Internet service providers (ISPs) – persons who provide services related to the operation of the Internet or another digital network;
Search engine providers – persons who provide an information location tool, which is defined as any tool that makes it possible to locate information that is available through the Internet or another digital network;
Copyright owners – who are sometimes referred to in the provisions as “claimants”; and
ISPs and search engine providers are treated differently in the Notice and Notice regime.
When an ISP receives a notice from a copyright owner that contains the required information (see below), the regime requires the ISP to forward the notice “as soon as feasible” to the ISP’s customer associated with the allegedly infringing activity (new ss. 41.26(1)(a), Copyright Act).
All notices must be in writing and must contain, among other things, the claimant’s name and address, the work to which the alleged infringement relates, the claimant’s interest or rights in respect of the work at issue, and the date and time of the alleged infringing activity and “location data for the electronic location to which the claimed infringement relates” (new ss. 41.26(2), Copyright Act).
An ISP who receives an appropriate notice from a copyright owner is required to inform the copyright owner once the notice has been forwarded and to also retain a record of the sent notice for six months, or up to one year if the copyright owner commences a proceeding relating to the alleged infringement (new ss. 41.26(1)(b), Copyright Act).
An ISP who fails to comply with the obligations under the Notice and Notice regime is subject to statutory damages of at least $5,000, but which are capped at $10,000 (new ss. 41.26(3), Copyright Act). In addition, ISPs are not permitted to charge a fee for performing their obligations (the provisions permit fees if a maximum fee has been fixed by regulation, but in the absence of a regulation, which will be the case, no fee may be charged by the ISP under new ss. 41.26(1) and (2), Copyright Act).
As noted above, search engine providers are treated differently. Although a copyright owner may send them a notice (new ss. 41.25(1)(c), Copyright Act), search engine providers are not obligated to communicate or forward the notice. However, a search engine provider who receives a notice can lose the benefit of ss. 41.27(1) of the Copyright Act (which limits relief against search engine providers to injunctive relief) for reproductions of the impugned work in certain circumstances (new ss. 41.27(3), Copyright Act).
U.S. Notice and Take Down Regime
The Canadian government describes the Notice and Notice regime as a “made-in-Canada” solution. By way of contrast, under the U.S. Notice and Take Down regime, which has existed since 1998, a service provider is liable for monetary or equitable relief for infringement of copyright unless upon notice of the claimed infringement, it “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity” (§512(c)(1)(C), Title 17, US Code).