One of the components of Bill C-11, The Copyright Modernization Act, was the Notice and Notice Regime. Yesterday, the Ministers James Moore (Industry) and Shelly Glover (Canadian Heritage and Official Languages) announced that this last component of Bill C-11 was coming into force as of January 2015. In addition, they also announced that Canada had ratified the WIPO Copyright Treaty, and the Performances and Phonograms Treaty, two international standards for protecting copyright. Both of these agreements will come into force on August 13, 2014. This was the final step of the implementation process for Bill C-11, and the government had been examining whether additional provisions or regulations should have been added to the Notice and Notice provisions. As you might recall, the Government of Canada describes the Copyright Modernization Act as “the Government’s balanced approach to modernizing Canada’s copyright laws to better protect the rights of creators and innovators in the digital age.”
What is the Notice and Notice Regime?
The Government of Canada describes Notice and Notice as a made-in-Canada solution that many Internet Service Providers (ISPs) and copyright owners have been participating in for years. In practice, it legally requires Internet intermediaries, such as ISPs and website hosts, to take action upon receiving a notice of alleged infringement from a copyright owner.
Specifically:
- ISPs and website hosts will be required to forward notices, sent by copyright owners, to users whose internet address has been identified as the source of possible infringement, and then notify the copyright owner when the notice has been sent.
- These notices must: state the claimant’s name and address, identify the material allegedly being infringed and the claimant’s right to it, specify the infringing activity, the date and time of the alleged activity, and the electronic address associated with the incident.
- The ISPs and website hosts must keep records of these notices on file for at least 6 months (up to 1 year) in case a copyright owner decides to pursue legal action.
The Government believes that the Notice and Notice regime, alongside the other components of the Copyright Modernization Regime, are designed to discourage online copyright infringement, provide copyright owners with a tool to enforce their rights, and gives respect to the interests and freedoms of users.
So…this is a good thing, right?
While strengthening copyright law for the benefit of copyright owners is obviously a worthwhile endeavour, there are some problems with the Notice and Notice provisions.
Back in 2011, CIMA provided comments on Bill C-11 to Ministers Paradis and Moore, and offered suggestions on how the bill could be strengthened.
With regards to the Notice and Notice provisions (specifically the ISP exceptions, responsibilities and statutory damages), CIMA voiced its concerns about these provisions not being strong enough, overly reliant on repeated warnings and that it would leave small businesses, like the ones that CIMA represents, far too reliant on costly legal proceedings. Specifically, the lack of a take-down provision – meaning that the responsibility lands on copyright owners to go to court to enforce an alleged copyright infringement.
“Again, CIMA believes the Act as written may lead to significantly less protection and compensation for its small business members, and as described earlier, will force copyright owners to repeatedly pursue expensive litigation against those that may misuse or misappropriate their intellectual property – with very little hope of recovering the true value of their loss. Specifically, Bill C?11 Section 47 (replacing Section 41 of the Act, specifically Sections 41.25?41.27) does not adequately address the issue of ISP liability in our view. The ‘notice?and?notice’ provision puts an unreasonable burden on copyright owners and creators to self?police infringements ?? while essentially allowing ISPs once notified of an infringement, to have no further involvement and thereby creating the untenable situation whereby infringements will continue.”
Following from this, we recommended that the Government include an amendment that also provides a much stronger and more actionable enforcement mechanism through the requirement of a take-down order.
You can read CIMA’s submission here: http://www2.cimamusic.com/wp-content/uploads/2013/10/C-11_Copyright_Act_CIMA_FINAL_Oct2011.pdf
You can read more about the Notice and Notice Regime here: http://news.gc.ca/web/article-en.do?nid=858099