Who is liable for online infringement?

The New Canadian Notice and Notice Regime

Who is Responsible for Online Copyright Infringement in Canada?

Are Internet service providers (ISPs) and search engine providers responsible when their subscribers and users infringe copyright? In the book Canadian Copyright Law (beginning at page 220), there is a discussion about who is liable for online copyright infringement in Canada. At the time of writing the book, there was no legally required system in Canada for ISPs and others to remove allegedly infringing content hosted by their service, even when a copyright owner notified the ISP. Although not mandatory, many Canadian ISPs have been voluntarily using a notice and notice regime.

What is a Notice and Notice Regime?

A notice and notice regime means that when an ISP receives a notice from a copyright holder that an ISP subscriber may be infringing copyright, the ISP forwards the notice to the subscriber. In the 2012 amendments to the Canadian Copyright Act, this regime has been codified and becomes mandatory as of 2 January 2015.

Government of Canada on the Notice and Notice Regime

A press release from the Government of Canada states the following:

The Notice and Notice regime is a made-in-Canada solution and will legally require Internet intermediaries, such as ISPs and website hosts, to take certain actions upon receiving a notice of alleged infringement from a copyright owner.

Specifically, ISPs and hosts are required to forward notices, sent by copyright owners, to users whose Internet address has been identified as being the source of possible infringement. The intermediary must also inform the copyright owner once the notice has been sent.

The Copyright Modernization Act sets clear rules on the content of these notices. Specifically, they must be in writing and state the claimant’s name and address, identify the material allegedly being infringed and the claimant’s right to it, as well as specify the infringing activity, the date and time of the alleged activity, and the electronic address associated with the incident. The Government is bringing the regime into force after determining that the Act provides sufficient flexibility for the regime to function without regulations.

Intermediaries must retain records associated with these notices for six months or longer (up to one year) in case a copyright owner decides to pursue legal action.

A copyright owner can also send a notice to a search engine provider.

If a notice is sent to a search engine provider for allegedly including infringing material on a website and that material has since been taken down, the search engine provider is expected to remove any copies they may have generated (e.g., for caching purposes) within 30 days. If copies are not removed, copyright owners could pursue damages after 30 days.

Learn more about Canadian Copyright Law.

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