The Government of Canada has announced that the "Notice and
Notice" regime established by Bill C-11, "An Act to Amend
the Copyright Act", is expected to come into force in January
2015. The amendments will provide for a mandatory notification
scheme for online copyright infringement.
Once the Notice and Notice provisions come into force, an
Internet intermediary, such as an Internet service provider (ISP),
web hosting service, or Internet search engine, will be required to
forward any notice of claimed copyright infringement to the
allegedly infringing subscriber. The intermediary will also be
required to alert the copyright owner once the notice has been
forwarded – or to explain the reason it was not possible to
forward the notice – and to retain records identifying the
alleged infringer for a minimum of six months. In the event that
the copyright owner brings an action against the alleged infringer,
the intermediary will be required to retain these records for
twelve months from the date the notice was received. The stated
intent of the government is to provide copyright owners with an
opportunity to seek a court order that would then mandate
disclosure of the alleged infringer's identity.
Copyright owners wishing to take advantage of the Notice and
Notice regime must provide the relevant intermediary with a written
notice of claimed infringement containing the following
The claimant's name and address;
The work or subject matter being infringed;
The claimant's interest with respect to the work or subject
matter being infringed (e.g., if the claimant is the owner, author,
The electronic location (e.g., website address) where the
infringement is taking place; and
The date and time of the infringement.
An intermediary who fails to comply with the Notice and Notice
scheme could be ordered to pay damages of $5,000 to $10,000.
Further, if a search engine receives a notice of claimed
infringement after the infringing work or subject matter has been
taken down from the original location identified in the notice, it
may be liable if it does not remove any cached version of the
infringement from its search results within 30 days of receiving
The new Canadian Notice and Notice regime is notably different
from its American equivalent, commonly called "Notice and
Takedown". Under the American Digital Millennium Copyright
Act, once an online service provider has received a notice of
claimed infringement it must expeditiously remove or disable access
to the allegedly infringing material.
The coming into force of the Notice and Notice regime was
initially postponed to allow for the adoption of regulations to
further particularize the procedure for providing notice. However,
following consultation with stakeholders, it now appears that the
government has opted to bring the regime into force without
adopting any regulations.
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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