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
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.
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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