It’s now old news that long-awaited copyright reform is coming to Canada, in the form of Bill C-32. These reforms will see Canada’s Copyright Act finally enter the digital age, and will address pressing concerns of copyright owners, including putting in place ways to help curb the rampant copyright infringement which occurs on the Internet. To this end, one of the innovations of Bill C-32 will be to put in place what is known as a “notice and notice” regime, which is touted as an inexpensive way to quickly stop online copyright infringement when it comes to the attention of a copyright owner.
In basic terms, the proposed “notice and notice” regime allows copyright owners to provide written notice to providers of Internet “information location tools” (that is, Internet Service Providers, search engines and hosting companies) of alleged infringement of their copyright. These Internet service providers are then required to provide notice to the originator of the infringing online content (the subscriber to that online service) that a third party has alleged that infringing material appears on their website. The trade-off for service providers (who are required, by law, to participate in this system) is that they are specifically exempt from liability for any infringement that takes place online, as long as they strictly act as intermediaries in terms of hosting, caching or communicating activities online.
In order to be legally valid, the notice that a copyright owner provides to service provider needs to contain some basic information (which is clearly listed in Bill C-32), as follows: 1) the name and address of the claimant; 2) a description indentifying the work related to the claimed infringement; 3) a statement as to the claimant’s interest in the copyrighted work (i.e. the claimant is the owner, or a licensee); 4) the location data for the electronic location to which the claimed infringement relates (i.e. the relevant URLs or Internet Protocol addresses); 5) a specification of the infringement claimed (in other words, what exact website content or downloadable file is at issue); 6) provides the date and time of the alleged infringement (this will usually be when the copyright owner first became aware of the alleged infringement); and 7) any other information that may be required by regulation.
In terms of item number 5, providing the ISP or search engine with copies of the infringing works as found on the website, with those elements that are specifically at issue highlighted, is recommended. Regarding item number 7, until regulations have been drafted to accompany Bill C-32, it is not known what additional information (if any) will be required to file a proper notice.
Once the notice (in the proper form) is received by the ISP, the ISP is then required to notify the subscriber responsible for the infringing online content that a notice of copyright infringement has been received. It will then be up to the subscriber to take positive steps to deal with the alleged infringement as it sees fit. If the online infringement continues, then the only recourse that the copyright owner has is to begin legal proceedings, which generally includes a request for an injunction prohibiting such infringement to continue in the future. As for the ISP (or other “information location tool” provider), its only remaining responsibility under the “notice and notice” regime is to retain record of the notification, as well as records that provide (or that could lead to) the identity of the alleged infringer for use in future court proceedings, for a period of six months following its receipt of the owner’s notice. Generally, this information will only be provided to the copyright owner once legal proceedings have commenced, and an order requiring the service provider to divulge this information to the copyright owner is obtained via motion to the Court. Service providers that fail to maintain such information can be liable to the copyright owner for statutory damages ranging from $5,000 to $10,000.
Although it is unclear what effect the “notice and notice” regime will have on curbing online copyright infringement once it becomes law, it will likely be effective against small-time infringers whose activities are inadvertent or not related to any real potential for monetary gain. In other words, it is not expected that this regime will be useful in combating wilful and substantial infringement, such as Internet movie piracy. In such cases, it may be more useful for copyright owners to turn (if possible) to the “notice and take down” regime put in place by the United States under its Digital Millennium Copyright Act (DMCA). The major advantage to the DMCA regime is that ISPs and hosting companies are required to remove allegedly infringing content (or even shut down the offending website) if the subscriber refuses to act on its own. DMCA notices are almost identical in content to the form of notice set out in Bill C-32, and are not taken lightly by online service providers, for the simple reason that, under the DMCA, if the service provider fails to act to take down infringing content, they themselves may become liable for the infringement.
Bill C-32 will finally put in place the tools needed to help stop online copyright infringement. It is therefore incumbent upon any business with an Internet presence to familiarize itself with this new regime to combat online copyright infringement, so that such businesses can better protect their valuable intellectual property in the digital age.
James Katz is an Associate with the law firm of BrazeauSeller.LLP. He practices in the areas of litigation and intellectual property. James can be reached at 613-237-4000 ext. 267 or at jkatz@brazeauseller.com. For more information about James, please visit www.brazeauseller.com.
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