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
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:
the claimant's name and address;
the copyrighted content being infringed;
what interest the claimant has (i.e. as owner, author, or
the website address where the infringement is taking
the nature of the infringement; and
the date and time of the infringement.
A claimant may send a notice to one of a few internet
an internet host or storage service; or
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:
forward the notice to the person who owns the website or
webpage at issue as soon as feasible;
inform a claimant that the notice has been forwarded
or why it was not possible to forward;
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
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
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
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
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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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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