Canada: Did You Notice? When A Notice Is Not A Notice Under The Notice And Notice Regime.

Introduction – the monkey in the middle

The Notice and Notice regime under the Canadian Copyright Act is a made-in-Canada solution to a particular problem, the classic "monkey in middle". In practical terms, if I am on, say, a university's network and I, without a legal right to do so, download an episode of a HBO series, if HBO is monitoring internet traffic, all HBO will be able to find out is that an IP address assigned to the university made an unauthorized copy of their copyrighted, dragon-filled, work. But they will not know that it was me.

The university, however, through its own authentication systems, likely does know something about me – it may only be my email address (e.g. if I log on as a guest) or they may know all of my contact information (e.g. if I live in a student residence).

So how does HBO enforce its copyright against me? The Notice and Notice system under the Copyright Act partially resolves this issue by allowing the content owners to send a claimed infringement notice to the ISP (the university in our example). The ISP is legally obligated to electronically forward the notice to the individual who was using the IP address at the time of the infringement and to retain records for a period to allow the identity of that person to be determined.

The Notice and Notice system differs from a Notice and Takedown system (which is in place in the United States) in that the ISP is not obligated to investigate the infringement and take down (i.e. remove) any allegedly infringing content. Rather, the Notice and Notice system is meant to warn the infringing party that their activity has been noticed (which may prompt them to take down any infringing content they've posted online, or delete any content they may have copied).

However, other than any voluntary steps that the recipient of a notice takes, the ball is in the content-owner's court – they may file an application in court to force the ISP to disclose the identity of the alleged infringer, and upon learning this, commence an infringement action directly against the alleged infringer or infringers.

In the context of Universities, Colleges and Institutes

Many institutions provide internet services for their faculty, staff, students and guests themselves rather than through commercial providers like Shaw, Rogers or Telus. As such, many are therefore considered to be ISPs for the purposes of the Notice and Notice regime.

That means, when anyone on their network makes an unauthorized copy on their network, the institution is the one receiving the claimed infringement notice.

Until Dec 13, 2018, forwarding notices was laborious-enough—as once a notice was received, IT services had to find out which individual(s) to forward the notice to, an exercise that sometimes required accessing several different systems, many of which are not integrated. In addition, due to the record keeping requirements of the regime, they had to 'retain' records in the event the content owner sought to compel disclosure, and to pursue the alleged infringers. That means, for some institutions, a technical fix (e.g. automating) is not possible or feasible, and therefore requires considerable person hours.

At least one thing that institutions did not have to do is pre-judge whether a notice could be seen to compel or induce (or coerce) the end-recipient to take any action. The intent of the regime was meant to simply put the recipient on notice and the expectation was that if the content owner wanted to proceed any further (including, for example, reaching a settlement over an infringement), they would go to the next step of seeking disclosure of the recipients identity and pursue the matter through the court system. For this reason perhaps, very little was prescribed as to the content of such notices.

Threats and Demands – The Ugly Side of Claimed Infringement Notices

However, what all ISPs began to see were notices that went beyond what the law required and perhaps intended – and started to see notices using threatening language, making outrageous claims of liability, and making offers of settlement that were excessive and required the recipients disclose their personal information.

In other words, those alleging infringement crossed what many felt were ethical, if not legal, lines. In the higher-ed context, these allegations of illegal activity and threats of litigation were received by students in vulnerable situations (e.g. international students on study permits) who felt that their immigration status would be in danger if they did not pay-up, quickly and in full. Indeed, notices began to be less about allegations of infringement (recall that simply sending or receiving a notice does not prove that any actual infringement occurred—it is just an allegation), but seemed to pre-judge and demand compensation as if a fait accompli.

Unfortunately, even such questionable notices had to be forwarded if they otherwise met the (minimal) requirements of the regime. Many institutions (and ISPs in general) responded to this by writing covering notes to all infringement notices, providing important information and reassurances regarding the Notice and Notice regime, and proving help-lines for distressed recipients.

Score One for Ethics

As a result of what was seen as an abuse of the system, on Dec 13, 2018, the Copyright Act was amended to state that notices of claimed infringement could not contain:

(a) an offer to settle the claimed infringement;

(b) a request or demand, made in relation to the claimed infringement, for payment or for personal information;

(c) a reference, including by way of hyperlink, to such an offer, request or demand; and

(d) any other information that may be prescribed by regulation. [there currently isn't any—similarly while the Act also already required that the notices be "in the form, if any, prescribed by regulation" and "contain any other information that may be prescribed by regulation", which could perhaps have earlier dealt with some of this mischief, nothing else had or has been prescribed]

Now, an institution that receives a notice that contains any of these notices, is not legally obligated to forward it (or, by that token, to engage in the record keeping that would allow them to identify the alleged infringer).

Score one for ethics and the Canadian way!

Good...but Practical? A Burden or a Benefit?

The new provisions place the burden of compliance in two places:

  • on the content owners, who are incentivized to write notices that comply with the law, so as to guarantee that they will be forwarded to the alleged infringers and that the ISPs would then keep records to allow the identity of the alleged infringers to be disclosed; and
  • on the ISPs, who may save the effort of forwarding notices (and keeping the associated records) by screening out non-compliant notices.

Note, however, that the law is written so as to empower the ISP to refuse to forward a notice that contains any of the offending content. Should an ISP forward a notice that does contain this content anyway, there does not appear to be any penalty under the Act.

So the question to be faced by each university, college and institute, is whether to invest the time, energy and resources, to screen out the offending notices ... or simply continue forwarding all notices?

Screening out the offending notices certainty sounds like the right thing to do, as it will minimize the distress of the recipients and reduce the load on helpdesk resources. But it may also be labour intensive, as there are numerous ways to express offers to settle, and demands for compensation – including by hyperlinking to a website that contains that information. Does that additional labour justify the benefits?

One further "benefit" of the screening could also be that if a notice is found to be non-compliant (and thus not one that has to be forwarded), it would relieve the university, college and institute of perhaps the equally burdensome record keeping requirements.

The other practical consideration, particularly in the higher-ed context, is whether there would also be reputational damage if they forward notices that are not compliant and if a recipient "falls" for a threat and pays-up: while not a legal obligation, some may see such institutional "ISPs" as having a more important oversight role due to their status and relationship with students, faculty and staff.

All told, the changes to the Notice and Notice regime are a move in the right direction in maintaining an appropriate balance between content owners and content users, especially when the internet makes copying of all sorts, legal and illegal, quite easy. However, it does require that the ISP act as a gate-keeper to some degree, which may not be something that is easily automated. While that gate-keeping function may be reasonable to expect as, perhaps, a cost of doing business, it does beg the question of whether it ought to be the ISP's cost. Perhaps, as contemplated by the Copyright Act but not yet implemented, Parliament ought to allow ISPs to collect a fee for processing notices from content owners, to offset the costs of compliance, so it becomes the cost of the content owner's business, rather than the monkey's ISP's.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions