Canadian Notice-and-Notice Copyright Law Comes into Effect

While a lot has been happening between India censoring websites, file-sharing porn cases proceeding through courts in the US, and UK ISPs hijacking browser sessions, Canada has quietly seen new copyright laws come into effect.

A report from the Daily Observer points out that the new copyright laws take effect. From the report:

Changes to copyright law that came into effect Thursday require Internet service providers (ISPs) to pass along notices of alleged copyright infringement.

Previously, this was a voluntary activity.

ISPs must also retain records of the notices they receive and forward to users for at least six months in case a copyright owner decides to pursue legal action.

Search engines like Google are also affected by the so-called Notice and Notice regime.

Within 30 days of being advised that allegedly infringing material has been taken down from a website, they must remove any copies of that material (such as cached versions). If they don’t comply, copyright owners could pursue legal action and claim damages.

CTV notes that the law also allows rightsholders to sue individuals, but that comes with a cap:

While such notices do not carry any immediate legal ramifications, Internet lawyer Allen Mendelsohn told CTV’s Canada AM that they do serve as “a warning” that a copyright holder has noticed illegal downloading activity at your IP address, and could decide to sue.

The law does not include a stipulation that the customer must stop downloading the material or remove it from any websites to which they may have posted, but it does allow a copyright holder to sue individuals. Lawsuits could seek up to $5,000 for downloading copyrighted material for personal use, and up to $20,000 for a download that led to commercial gain.

While the cost of litigation, and the relatively small return, could discourage copyright holders from suing, Mendelsohn notes it could be more worthwhile to sue a large number of people at once.

This element of copyright law now being formalized has a long an interesting history. Back when the Liberal party of Canada was in power, a notice-and-takedown system was heavily lobbied for by organizations like the Canadian Recording Industry Association (CRIA). Among the demands were the ability for rightsholders to sue for statutory damages for alleged copyright infringement. This, along with anti-circumvention rules, was billed by many (including myself at the time) as the Canadian DMCA. The proposed law led to widespread outcry from Canadians and lawmakers held off until it died on the order paper.

In the years since, the same laws were proposed by both Liberal and Conservative governments. Each time, the unveiled laws led to widespread outrage in Canada. In fact, the controversy grew so large, major Canadian record labels left the CRIA in an effort to distance themselves from the push to impose US style litigation into the Canadian system. One label, Nettwerk, even led a campaign to “save the music fan” in their efforts to oppose such litigation laws. Artists also formed the Canadian Music Creators Coalition to show that not all artists agree with US style file-sharing lawsuits.

All that has led to what we see today. A notice-and-notice system was always in place to some extent for ISPs, but such a system is now being formalized. Under this system, if a copyright holder discovers alleged copyright infringing activity, a notice is sent to the ISP. The ISP, in turn, sends a notice to the subscriber to inform them that their activities were noticed and, essentially, that they should refrain from such activities. Many in Canada who do receive notices actually do cease file-sharing.

So the question becomes, what happens next? Will major foreign companies like major record labels begin a mass litigation campaign as suggested by CTV? That is something we’ll have to wait and see. If a mass lawsuit hits, then it will have to go through the court system first. There could be a lot more hurdles to overcome than what may be seen on the surface.

For one, Canadian privacy laws are very robust compared to other countries. So, there could be questions on the techniques of gathering IP addresses. For another, there can be a question of jurisdiction. Can a court in Quebec hear a file-sharing case where the alleged infringer is located in BC? A third question I would have is would this overwhelm the court system? There can’t be a blanket ruling on everyone and every Doe case has to at some point be weighed should the defendants choose to challenge the case (at a cap of $5,000 each, that might invite a few challengers). There is the question of whether an IP address is sufficient evidence – something the US courts have acknowledged as a perfectly valid question. There are just so many unknowns at this point. With the rewards being limited like they are, it may be possible that lobbying for more strict laws would be a more attractive rout for rights holders at this point (namely trying to eliminate the cap so that it’s possible to threaten random people with millions in damages instead).

Ultimately, it’s unlikely that this law coming into force is where this debate ends in Canada. It’s only the beginning of what self-inflicted damage the entertainment industry wants to wade through like in the US courts.

(Hat tip: /.)

Drew Wilson on Twitter: @icecube85 and Google+.


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