Canada: Combatting Online Copyright Infringement

The Internet is a fantastic platform for the widespread dissemination and exchange of works and information.  It is also an increasingly popular medium for infringers to illegally source and share copyrighted materials.

Losing control over you work is not only frustrating, it can damage your business or brand.  Fortunately, copyright law prohibits the unauthorized reproduction of a work.  Copyright disputes do not need to escalate into costly and time-consuming litigation.  There are a number of options, explored below, for copyright owners to quickly and effectively address online infringement.

What is Copyright?

• Copyright is the exclusive legal right to produce, reproduce, publish, or perform an original literary, artistic, dramatic, or musical work. The copyright owner controls the use of their work.  Copyright exists automatically, without the need for registration.  The author, or their employer, typically owns copyright in the work.

How is Copyright Infringed?

• Copyright infringement occurs when a person, without the consent of the copyright owner, does anything with a copyrighted work that only an owner is allowed to do. This includes, for example, someone copying, performing, publishing, recording, selling, or distributing your copyrighted work on the internet without your permission.  A common example of digital copyright infringement is downloading a movie from a website which hosts pirated content.

How Can You Address Copyright Infringement?

1. DMCA Takedown Requests

A "DMCA Takedown" is a U.S. mechanism for a copyright owner to request that unauthorized content be removed from a website.  DMCA Takedowns are a well-established tool which copyright owners can employ to quickly address infringement on sites hosted in the U.S.  Most internet service providers (ISPs) (e.g., hosting providers, who are the companies that manage the servers on which a website's information is stored) have takedown policies and processes in place for the submission and processing of DMCA Takedown requests.

2. Canada's Notice and Notice Regime

Canada has its own version of the DMCA Takedown: the Notice and Notice Regime (the Regime).  The Regime, established by the Copyright Act, allows a copyright owner to submit a notice of alleged infringement to a Canadian ISP when they believe that ISP is hosing infringing content in Canada (i.e., the site's Internet protocol (IP) address is located in Canada).  An ISP is required to forward on notices which meet the Regime's requirements to the allegedly infringing Internet user, alerting them that their account has been linked to infringing activities.

Notices under the Regime must:

• state the copyright owner's name and address;
• identify the allegedly infringed copyrighted material and the owner's interest or right with respect to that material;
• specify the location of the data (g., include a link to the infringing content);
• allege infringement; and
• specify the date and time of the alleged infringement.

Any notice that contains an offer to settle, or a request or demand for payment or for personal information, or a reference to any such offer, request, or demand, in relation to the claimed infringement, does not comply with the Regime.  Invalid notices will not be forwarded on to the alleged infringer.

Unfortunately, there is no obligation to respond to a notice – it may just be ignored by the infringer.  Similarly, an ISP may take down the infringing content where the provisions of their Terms of Service and/or their Web Hosting Agreement addresses infringing behaviour and its consequences.  However, an ISP is not legally obligated to do so.

Despite the Regime's shortcomings, submitting a notice is still a relatively efficient first step to put both the Internet user and the ISP on notice of the unauthorized and infringing use of your copyrighted content.  The notice may be enough to trigger takedown action by either the infringing user or the ISP and avoid the need to escalate further.

Our firm can assist you with identifying the appropriate ISP(s), and with the drafting, submission, and/or review of Notice and Notice submissions relating to your copyrighted content.

3. Social Media Complaints and Takedown Policies

If your copyrighted work has been reproduced on social media without your authorization, the matter can often be resolved through a message to the account holder, explaining your rights and requesting a takedown.  If that outreach is unsuccessful, there are internal reporting and takedown mechanisms available on almost all of the different social media platforms.

To report copyright infringement directly to the platform, you will usually need to submit a complaint form through the platform's help centre.  Some platforms require that you be an account holder before you can sign in and access the proper form.  Although the information required to support a complaint varies, most of the major social media platforms require the same type of information needed for a DMCA Takedown or Regime notice.

For more information specific to each platform, please see the Youtube, Facebook, Twitter, LinkedIn, Tik Tok, and Instagram forms and guidelines.  We have experience reporting infringement on social media platforms.

4. Cease and Desist Letters

If you are able to identify the infringer and obtain their contact information (be it a mailing or email address), then you may consider sending a cease and desist letter.  A cease and desist letter is typically used to put the infringer on notice of your rights and your intention to protect those rights if the infringing activity continues.  Cease and desist letters can prompt the infringer to cease their activities and/or negotiate a resolution.

Like a notice under the Regime, a cease and desist letter does not require the recipient to take action.  However, unlike a notice under the Regime, a cease and desist letter is sent directly to the infringer, without an ISP acting as a go-between.  Further, the limitations of a Regime notice do not apply to such letters.  Therefore, a cease and desist letter may be more effective in terms of eliciting a response, and establishing a direct line of communication with the infringer.

The one important caveat is that there is a risk that any cease and desist letter will be published by its receiver.  If the letter contains any hyperbole, or employs scare tactics, then you could suffer reputational damage or face public criticism.

Our team can help you draft a letter that is tailored to your rights and circumstances, and which is accurate, measured, and persuasive.

5. Litigation

If all else fails, a copyright holder can commence a legal action in either the Federal Court or a provincial Superior Court in order to secure a remedy, including an injunction or damages.

Litigation can be time consuming and expensive.  Depending on the nature of the infringement, litigation may be the most effective strategy.  In other cases, the extent of infringement may not warrant such a significant response until you have exhausted the alternatives.

Ultimately, initiating litigation against persistent or unresponsive wrongdoers is sometimes what finally encourages a negotiated resolution, or secures the desired takedown of your copyrighted work(s).