Canada: Canada's Notice And Notice Copyright Regime In Force

Canada's notice-and-notice regime, intended to deal with online copyright infringement, has come into force as of January 2, 2015.  This new regime will govern and affect the actions of copyright owners, internet service providers (ISPs), internet hosts, search engine providers and alleged infringers in dealing with online infringement.

The regime is created through three sections of the Copyright Act—sections 41.25, 41.26 and 41.27(3). Unlike the notice-and-takedown regime in some other jurisdictions, notably the US, the notice-and-notice regime does not require intermediaries to take down allegedly infringing content, but instead only requires that notice be passed to an alleged copyright infringer.

However, the regime requires that a specific form of notice be prepared and sent to an appropriate intermediary.

Preparing a Notice

To take advantage of the regime, a claimant must prepare a notice which includes each of the following details:

  1. the claimant's name and address;
  2. the copyrighted content being infringed;
  3. what interest the claimant has (i.e. as owner, author, or licensee);
  4. the website address where the infringement is taking place;
  5. the nature of the infringement; and
  6. the date and time of the infringement.

A claimant may send a notice to one of a few internet intermediaries:

  1. an ISP;
  2. an internet host or storage service; or
  3. a search engine provider.

The obligations on intermediaries differ substantially between ISPs, hosts and storage services on the one hand, and search engine providers on the other.

ISPs and internet storage services

ISPs, hosts and storage services will be required upon receipt of a proper notice to:

  1. forward the notice to the person who owns the website or webpage at issue as soon as feasible;
  2. inform a claimant that the notice has been forwarded or why it was not possible to forward;
  3. retain the records that will allow the identity of the person who owns the website or webpage at issue to be determined for six months, or for 12 months if a legal claim is commenced within that first 6 month period.

Despite the administrative burden that this may place on ISPs or internet storage services, the Minister has not passed a regulation permitting any fees to be charged for forwarding notices, or maintaining the required records.  

Remedies against ISPs or internet storage providers limited

If an ISP, host or storage service fails to comply with their obligations following receipt of a notice, a copyright owner is limited to claiming statutory damages, not for any actual damages resulting from infringement. Statutory damages are currently set between $5,000 and $10,000, although they may be later changed by regulation.

Search engine providers

Unlike other intermediaries, search engine providers are not required to forward notices.

The new regime only provides a remedy against search engines after any infringing work has been removed from its original source.  If the source content remains on the internet, the amended legislation protects the search engine provider from liability for damages for reproducing or caching the content.  Injunctive relief remains available to the extent it may be available under existing copyright law.

If notice is delivered to a search engine provider after the allegedly infringing work has been removed from the internet, and the search engine continues to reproduce and cache the work after 30 days, then the search engine may be liable for all ordinary remedies including damages.  In this regard the search engine provider will be motivated, and indeed have a duty, to remove the infringing work.


The notice-and-notice regime now in force in Canada is a unique response to the problem of online copyright infringement.  While providing copyright owners an easier route to access potential infringers, and to preserve records of identity, it also significantly circumscribes potential liability for search engines, and to a lesser degree to ISPs, hosts and storage services.

For the time being, it will be important to see how often copyright holders take advantage of the new regime, and to what effect.

Please contact a member of our Intellectual Property Group if you require assistance in either preparing or properly responding to a notice sent pursuant to this new regime.

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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Madeleine A. V. Hodgson
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