Take Notice! Notice-and-Notice Coming Into Force in January 2015

by Dentons
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On June 17, 2014, the Canadian government announced that the “notice-and-notice” provisions contained in the Copyright Act (Canada) will be coming into force in January 2015. (The precise date they will come into effect is still a bit uncertain: the government’s “Backgrounder” on the topic says “The Notice and Notice regime will come into force six months following publication of the Order in Council. The Copyright Modernization Act will be fully in force by January 2015?. As of the writing of this post, the Order in Council does not appear to have been published yet – so long as it is published before July 1, 2014, the government will be able to meet the deadline of the provisions coming into force by the end of January 2015.

The “notice-and-notice” mechanism is contained in  Sections 41.25 – 41.27 of the Copyright Act (Canada) and creates a process by which copyright owners can send a notice of claimed copyright infringement to online service providers (such as ISPs, site hosting services and search engine providers). When a recipient receives a notice of infringement, 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” and must also retain records for specified periods of time to enable the sender of the notice to identify the ultimate recipient of the notice (i.e., to enable the copyright owner to identify the service user who uploaded the purportedly infringing content). 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 “notice-and-notice” regime is the last of the major elements of the Copyright Modernization Act (once known as Bill C-11) to come into force – most of the other provisions of the CMA came into force in November 2012. The coming into force of the “notice-and-notice” provisions had been delayed pending consultations with stakeholders which most people thought would lead to the implementation of regulations which would accompany the statutory provisions. However, according to the government Backgrounder, the government has “determin[ed] that the Act provides sufficient flexibility for the regime to function without regulations”.

The lack of regulations has two consequences:

  • online service providers are not allowed to charge a fee to copyright owners for “passing along” the notice
  • there is no prescribed form for delivering a notice of claimed infringement – however, any such notice must still contain the elements set out in Section 41.25(2)

Failure to abide by the obligations imposed in the “notice-and-notice” regime (i.e., failing to pass along a notice or explaining why they were unable to do so or failure to maintain the requisite records) can result in liability for statutory damages between $5,000 – $10,000 (as set out in new Section 41.26(3)).

One other element of the “notice-and-notice” regime merits attention: how it treats providers of “information location tools” (what most of us would call “search engines”). Section 41.27 says that an injunction is the only remedy which a copyright owner has against a search engine (subject to certain conditions set out in Sections 41.27(2) and (4)); however, the search engine provider must remove any cached copies of the infringing work within 30 days of receiving the notice of claimed infringement – any copies which remain after 30 days can give rise to a claim for monetary damages.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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