In a statement dated June 17, 2014,
the Canadian government announced the coming into force of
Canada's new Notice and Notice regime, included as part of The Copyright Modernization
Act (which provides for the most recent
amendments to Canada's Copyright Act). The
announcement provides that the Notice and Notice regime (i.e., new
sections 41.25, 41.26 and 41.27(3) will come into force six months
following publication of the Order in Council (the precise date of
which is yet to be determined).
Although most sections of The Copyright Modernization
Act came into force on November 7, 2012, the coming into force
of the Notice and Notice regime was delayed "in order to
consider a regulatory process" (see Order SI/2012-85 dated
October 25, 2012). However, the June 17 announcement made clear
that no regulations will be implemented in connection with
this regime, instead stating that "the [Copyright] Act
provides sufficient flexibility for the Notice and Notice regime to
function without regulations."
According to the backgrounder published with
the announcement, The Copyright Modernization Act will be
fully in force by January 2015, two and a half years after it
received royal assent on June 29, 2012. This suggests that the
Order in Council to bring into force the Notice and Notice regime
The Notice and Notice Regime
Generally stated, the Notice and Notice regime engages four
Internet service providers (ISPs) – persons who provide
services related to the operation of the Internet or another
Search engine providers – persons who provide an
information location tool, which is defined as any tool that makes
it possible to locate information that is available through the
Internet or another digital network;
Copyright owners – who are sometimes referred to in the
provisions as "claimants"; and
ISPs and search engine providers are treated differently in the
Notice and Notice regime.
When an ISP receives a notice from a copyright owner that
contains the required information (see below), the regime requires
the ISP to forward the notice "as soon as feasible" to
the ISP's customer associated with the allegedly infringing
activity (new ss. 41.26(1)(a), Copyright
All notices must be in writing and must contain, among other
things, the claimant's name and address, the work to which the
alleged infringement relates, the claimant's interest or rights
in respect of the work at issue, and the date and time of the
alleged infringing activity and "location data for the
electronic location to which the claimed infringement relates"
(new ss. 41.26(2), Copyright Act).
An ISP who receives an appropriate notice from a copyright
owner is required to inform the copyright owner once the notice has
been forwarded and to also retain a record of the sent notice for
six months, or up to one year if the copyright owner commences a
proceeding relating to the alleged infringement (new ss.
41.26(1)(b), Copyright Act).
An ISP who fails to comply with the obligations under
the Notice and Notice regime is subject to statutory damages of at
least $5,000, but which are capped at $10,000 (new ss. 41.26(3),
Copyright Act). In addition, ISPs are not permitted to
charge a fee for performing their obligations (the provisions
permit fees if a maximum fee has been fixed by regulation, but in
the absence of a regulation, which will be the case, no fee may be
charged by the ISP under new ss. 41.26(1) and (2), Copyright
As noted above, search engine providers are treated differently.
Although a copyright owner may send them a notice (new ss.
41.25(1)(c), Copyright Act), search engine
providers are not obligated to communicate or forward the notice.
However, a search engine provider who receives a notice can
lose the benefit of ss. 41.27(1) of the Copyright Act
(which limits relief against search engine providers to injunctive
relief) for reproductions of the impugned work in certain
circumstances (new ss. 41.27(3), Copyright Act).
U.S. Notice and Take Down Regime
The Canadian government describes the Notice and Notice regime
as a "made-in-Canada" solution. By way of contrast, under
the U.S. Notice and Take Down regime, which has existed since 1998,
a service provider is liable for monetary or equitable relief for
infringement of copyright unless upon notice of the
claimed infringement, it "responds expeditiously to remove, or
disable access to, the material that is claimed to be infringing or
to be the subject of infringing activity" (§512(c)(1)(C), Title 17,
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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