isps – Legal Affairs Canada

Copyright Law Notice on Notice

New Copyright laws come into force January 2015. Many lawyers and journalists, and corporations have spoken on these new sections but none have posted the actual law, and thus imposed their own understandings, perceptions, and agendas on the the law. This post is dedicated to the actual wording of the law not any interpretation, it is for information purposes only. Further these sections have to be read in conjunction with the whole of the Copyright Act.

The Core sections of the new copyright notice on notice regime are section 41.25 and 41.26 of the Copyright Act and passed as amendments in the Copyright Modernization Act.

Provisions Respecting Providers of Network Services or Information Location Tools

• 41.25 (1) An owner of the copyright in a work or other subject-matter may send a notice of claimed infringement to a person who provides
(a) the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic location that is the subject of the claim of infringement is connected to the Internet or another digital network;
(b) for the purpose set out in subsection 31.1(4), the digital memory that is used for the electronic location to which the claim of infringement relates; or
(c) an information location tool as defined in subsection 41.27(5).

• Marginal note: Form and content of notice

(2) A notice of claimed infringement shall be in writing in the form, if any, prescribed by regulation and shall
(a) state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant;
(b) identify the work or other subject-matter to which the claimed infringement relates;
(c) state the claimant’s interest or right with respect to the copyright in the work or other subject-matter;
(d) specify the location data for the electronic location to which the claimed infringement relates;
(e) specify the infringement that is claimed;
(f) specify the date and time of the commission of the claimed infringement; and
(g) contain any other information that may be prescribed by regulation.

• Marginal note: Obligations related to notice

• 41.26 (1) A person described in paragraph 41.25(1)(a) or (b) who receives a notice of claimed infringement that complies with subsection 41.25(2) shall, on being paid any fee that the person has lawfully charged for doing so,
(a) as soon as feasible forward the notice electronically to the person to whom the electronic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and
(b) retain records that will allow the identity of the person to whom the electronic location belongs to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received or, if the claimant commences proceedings relating to the claimed infringement and so notifies the person before the end of those six months, for one year after the day on which the person receives the notice of claimed infringement.

• Marginal note:Fees related to notices

(2) The Minister may, by regulation, fix the maximum fee that a person may charge for performing his or her obligations under subsection (1). If no maximum is fixed by regulation, the person may not charge any amount under that subsection.

• Marginal note:Damages related to notices

(3) A claimant’s only remedy against a person who fails to perform his or her obligations under subsection (1) is statutory damages in an amount that the court considers just, but not less than $5,000 and not more than $10,000.

• Marginal note:Regulations — change of amounts

(4) The Governor in Council may, by regulation, increase or decrease the minimum or maximum amount of statutory damages set out in subsection (3).

• Marginal note: Injunctive relief only — providers of information location tools

• 41.27 (1) In any proceedings for infringement of copyright, the owner of the copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of an information location tool that is found to have infringed copyright by making a reproduction of the work or other subject-matter or by communicating that reproduction to the public by telecommunication.

• Marginal note:Conditions for application

(2) Subsection (1) applies only if the provider, in respect of the work or other subject-matter,
(a) makes and caches, or does any act similar to caching, the reproduction in an automated manner for the purpose of providing the information location tool;
(b) communicates that reproduction to the public by telecommunication for the purpose of providing the information that has been located by the information location tool;
(c) does not modify the reproduction, other than for technical reasons;
(d) complies with any conditions relating to the making or caching, or doing of any act similar to caching, of reproductions of the work or other subject-matter, or to the communication of the reproductions to the public by telecommunication, that were specified in a manner consistent with industry practice by whoever made the work or other subject-matter available through the Internet or another digital network and that lend themselves to automated reading and execution; and
(e) does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on the use of the work or other subject-matter.

• Marginal note:Limitation

(3) If the provider receives a notice of claimed infringement, relating to a work or other subject-matter, that complies with subsection 41.25(2) after the work or other subject-matter has been removed from the electronic location set out in the notice, then subsection (1) applies, with respect to reproductions made from that electronic location, only to infringements that occurred before the day that is 30 days — or the period that may be prescribed by regulation — after the day on which the provider receives the notice.

• Marginal note:Exception

(4) Subsection (1) does not apply to the provision of the information location tool if the provision of that tool constitutes an infringement of copyright under subsection 27(2.3).

• Marginal note:Factors — scope of injunction

(4.1) If it grants an injunction as set out in subsection (1), the court shall, among any other relevant factors, consider the following in establishing the terms of the injunction:
(a) the harm likely to be suffered by the copyright owner if steps are not taken to prevent or restrain the infringement; and
(b) the burden imposed on the provider and on the operation of the information location tool, including
(i) the aggregate effect of the injunction and any injunctions from other proceedings,
(ii) whether implementing the injunction would be technically feasible and effective in addressing the infringement,
(iii) whether implementing the injunction would interfere with the use of the information location tool for non-infringing acts, and
(iv) the availability of less burdensome and comparably effective means of preventing or restraining the infringement.

• Marginal note:Limitation

(4.2) A court is not permitted to grant an injunction under section 39.1 against a provider who is the subject of an injunction set out in subsection (1).

• Meaning of “information location tool”

(5) In this section, “information location tool” means any tool that makes it possible to locate information that is available through the Internet or another digital network.

The Statues and Law (Justice Canada website)

The End.