How “Notice and Notice” Works for Copyright Claims in Canada

You have this “friend”. She opened her mail box one day and found a letter from her internet service provider. She is used to getting bills from the ISP, of course, but this one was different.

The ISP’s letter said they had received a complaint from a copyright owner. The owner claims your friend has illegally downloaded content. There is some important sounding and scary language describing how the Copyright Act prohibits this kind of thing. It points out it is punishable by fines or worse.

Of course you would never do something like this but your friend apparently has. She has been targeted through the latest changes to Canada’s copyright legislation, with the somewhat confusing name of “notice and notice letters”.

To understand what notice and notice means and why it is set up the way it is we first have to understand what happened in the USA. Americans have struggled balancing the rights of intellectual property owners and users. The story is too long to go into here but, unsurprisingly in a country with such a powerful movie, music and entertainment industry, content owners have been winning the battles over the last couple of decades.

One of the peaks of this power grab was the Digital Millennium Copyright Act. The DMCA is infamous because of its hard line attempts to prevent online copyright infringement. One tool is a “notice and takedown” process.

Let’s say a proud Mom posted her son’s 3rd year birthday party video to Youtube. In the background, underneath the screaming kids, you can hear a portion of “It’s a Small World” being played over and over and over.

Disney’s massive computer servers ferret out this video and decide it is an infringement of their copyright in this delightful song. So they send a takedown notice to Youtube claiming breach of copyright. The DMCA provides “safe harbour” to Youtube so it cannot be sued for participating in an infringement…as long as they comply with the takedown. The video is immediately removed.

Mom can apply to have the takedown overturned but chances are she will not. It is just too much trouble. In this case the family’s feelings might be hurt but there is not much damage beyond that. But what if the video was an exempted and legal use of the song and Disney did not have the right to give the notice? Again, it could be challenged but good luck competing with Disney’s army of lawyers.

That is just one of the many problems with notice and takedown under DMCA. It is being abused far beyond the original intent. Some are using it to take down competitors’ content for example. While it is wonderful for content owners it can trample on legitimate rights of users and competitors.

In the meantime, Canada and most other countries were under enormous pressure from the US to make their IP laws more American-like. This usually means content owners are granted more rights. The bad news, if you are not a content owner, is that many of the changes have already been made or continue to be discussed. The good news is that some of the obvious rough edges have been changed to protect Canadian users. One of these replaced notice and takedown with notice and notice.

Under notice and notice, there is no automatic removal of material. More importantly, the legislation resists something that content owners have desperately wanted – the ability to force ISP’s to disclose who is doing “illegal” downloading. Owners can only track down IP addresses (something like and it is up to the ISP to match those IP’s to an actual person’s name. So far ISP’s have fought against giving out this information without a court order.

Under notice and notice this anonymity continues to be protected. An ISP is still given safe harbour but they do not have to issue takedowns. If they receive a notice from a content owner they then must send their own notice to the user (without disclosing the name to the owner) advising they have received a complaint. That is it. Without a court order they do not have to go further.

Content owners are not happy with this, obviously, despite evidence showing a notice given to a user has a high probability of discouraging future infringements. Remember that just because a claim is made does not mean there is any merit. A court has not even looked at the matter and a recipient of a letter can usually ignore it without any immediate risk. The cap on fines of $5,000 for personal use means few users will ever get sued.

Despite this compromise solution there have already been abuses reported. Content owners are going beyond what they are supposed to be doing. This is perhaps more evidence that the Canadian solution is a good one because of the consequences of abuse under a more draconian system.

So you can tell your “friend” that the secret police will probably not be banging down their door. Yet. Nonetheless, you can remind them that content is worth something. They should respect the owner’s investment and pay for the value received.