How does it work?
An elderly grandmother and a first-person shooter video game. The two typically have very little in common. Yet both were recently in the headlines of the national news. The story involved an email sent pursuant to Canada's notice and notice copyright legislation, accusing a senior citizen of piracy and demanding that she pay an undisclosed settlement or risk a fine of up to C$5,000. In today's social media culture, controversial stories can quickly go viral and no copyright owner wants bad press when seeking to enforce its rights. By consulting with Canadian counsel familiar with the details of the notice and notice legislation, rights holders can implement a successful enforcement strategy, while mitigating such risks.
Canada's notice and notice regime for copyright owners was introduced as part of Bill C-11 of the Copyright Modernisation Act and came into force on January 2 2015. At the time, it was touted as Canada's answer to the Digital Millennium Copyright Act or notice and takedown legislation in the United States. Notice and notice was drafted to provide copyright owners with a tool in their fight against online infringement of their copyrighted material.
However, since its introduction, the legislation has been portrayed by some in the media as a mechanism that can be exploited by copyright owners to forward misleading demand letters to internet subscribers in order to extract settlement payments for copyright infringement. This public scrutiny is likely to remain a reality for copyright owners and thus when relying on notice and notice in combatting online copyright infringement, a good faith intention to enforce copyright is not the only factor to consider.
A copyright owner can monitor the Internet and identify the Internet Protocol (IP) addresses of users that are infringing copyright, for example ‒ downloading a movie or posting infringing content. The copyright owner can then contact the user's internet service provider (ISP) and request that a notification be sent to the user by the ISP. If the ISP fails to forward the notification, it can be liable for statutory damages of between C$5,000 and C$10,000. By using the ISP as an intermediary, the copyright owner does not access the identity of the person associated with the IP address, but can effectively put the user on notice of the alleged infringement. If the matter is not resolved, the copyright owner can obtain a court order forcing the ISP to reveal the identity of the user in order to pursue a lawsuit or other enforcement.
Copyright owners are often unable to determine the identity of internet infringers or find reliable means to contact infringers. The notice and notice regime enables rights holders to reliably communicate to infringers information such as the scope of rights held by the owner, the specific content that is alleged to be infringed and the potential consequences of infringement. This can lead to a satisfactory result, such as a voluntary settlement for infringement or removal of the infringing content. Additionally, the use of notice and notice can raise awareness in situations where an internet user does not realise that the activity is infringing, or that his or her IP address is being used in connection with infringing activities. However, unlike the Digital Millennium Copyright Act, notice and notice does not guarantee the removal of infringing content, since the ISP's only obligation is to forward the notice and it is then up to the user to remove the material.
Since the introduction of notice and notice, there has been an increasing amount of negative media coverage in Canada regarding high volumes of misleading template letters being sent to internet users alleging copyright infringement and providing a link to a settlement offer. One potential explanation for why the letters are misleading is that they often appear to borrow approaches from other jurisdictions where the available remedies and defences may differ from those in Canada. For example, such letters may improperly threaten criminal action or inflate available damages. This can lead to recipients publishing the letters online with recommendations to ignore them; in some cases there has been a public backlash against the copyright owner for overly aggressive enforcement. To avoid such pitfalls, rights holders should involve experienced Canadian counsel at the outset when developing their online copyright enforcement strategy for Canada.
The notice and notice regime is a cost-effective and useful tool in the ongoing enforcement of copyright on the Internet. It should therefore be considered as part of a comprehensive copyright enforcement strategy for Canada, developed with input from experienced legal counsel. A good enforcement strategy will recognise and plan for the various risks that accompany online enforcement, including negative media coverage and consumer backlash.
For further information on this topic please contact Erin Creber at Smart & Biggar/Fetherstonhaugh by telephone (+1 613 232 2486) or email ([email protected]). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.