Canada’s Copyright Act was substantially changed with various revisions which came into effect in November of 2012. But the Notice and Notice regime was deferred until a later date, and it now comes into force on January 2, 2015.
The purpose of this regime is to require internet intermediaries, such as ISPs and website hosts, to take certain actions upon receiving a notice of alleged copyright infringement.
Canada’s Notice and Notice system is distinct from the Notice and Takedown system used in the U.S. and elsewhere.
Under the U.S. system, a procedure is created where online service providers are not liable (a “safe harbour”) to pay monetary compensation if they comply with the Notice and Takedown regime, which requires the allegedly infringing work to be taken down. The alleged infringer must be notified, but if it provides a counter-notice, the objection must be forwarded to the claimant. If the claimant does not bring a lawsuit within a defined period, then the material must be restored to its location on the network. Critics of the U.S. system find that it is prone to excessive removal of content.
Canada has taken a very different approach, based on an informal practice that has developed prior to these Notice and Notice provisions coming into force.
Under our Notice and Notice system, a notice of claimed infringement must contain certain information, such as the identity of the work, the Claimant’s interest, and its location, and when the ISP or host receives that information, they must forward it to the alleged infringer, while also maintaining records for a defined period of time which allow the identity of the alleged infringer to be determined .
If the ISP or host fails to comply with its duties under the Notice and Notice procedure, the copyright owner is entitled to damages between $5,000 and $10,000.
But the key difference from Notice and Takedown is that the ISP or host is not required to take down the work merely based on receipt of the notice.
Some argue that Notice and Notice provisions are not clear enough as to whether an ISP or host may be liable if they know or should know that copyright infringement is occurring.
Our Notice and Notice regime will affect search engines differently. Under the Copyright Act, a search engine is not liable to pay monetary compensation, but is only subject to an injunction (stop order), if the search engine provider is found to have infringed copyright by making a reproduction of the work. This protection is subject to certain conditions which essentially require bona fide operation of the search engine.
In addition, if after the alleged work is taken down by a host or service provider the search engine is sent a notice, then the search engine may be liable for monetary compensation if the search engine reproduces that work more than 30 days after receipt of the notice. Therefore a search engine must be sure to remove any cached copies within 30 days of receipt of the notice.
Search engine providers are not required to forward a notice of infringement to the alleged infringer.
As a result of these new provisions, ISPs and hosts should focus their attention on developing effective systems to meet the obligations imposed on them under the Notice and Notice regime. Search engines will need to be ready to manage their caching systems to deal with these obligations as well.