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by Shaya Silber

[please note that this article contains references to Bill C-11.  Bill C-11 is now a law that is full force and effect]

The role of Internet Service Providers (ISPs) in facilitating copyright infringement has been a controversial topic since the beginning of the world wide web.  The Canadian government is expected to amend the Copyright Act to address this issue.

C-11 (the proposed amendments to the Copyright Act) contains provisions that are aimed at curbing copyright infringement.  One of these measures is known as the Notice-and-Notice (N&N) provision. This modification to the Copyright Act (if it’s passed into law) provides the opportunity for a copyright holder to send a notice of copyright infringement to an ISP such as Bell or Rogers.  The ISP then forwards the notice to the user who is allegedly engaging in infringing activity. (The N&N is different from the current practice in the US under the Digital Millennium Copyright Act or DMCA).  The US currently has what’s known as Notice-and-Takedown (N&T). Essentially, once a copyright holder submits a notice of infringement and swears that they are the owner and that they are making the claim in good faith, the ISP is required to remove the content in order to avoid liability themselves.

The N&N must contain information such as the date and nature of the infringement. Furthermore, ISPs are required to keep a record of the notices that they have forwarded, as well as the identity of the infringing individual. The ISPs are required to keep a record of this information, in the event of future infringement proceedings. If the ISPs do not maintain such records, they may be liable to pay damages of up to $10,000.

However, many ISPs have been adhering to a sort of voluntary N&N regime for the last decade or so. There are questions about its efficacy. The data is not clear as to whether the individuals who are receiving the notices are actually discontinuing their illegal activities.  In addition, there are privacy concerns  about what type of information the ISPs are providing about their users in response to these requests.

An N&N regime is certainly less strict with respect to suspected copyright infringement than its American counterpart of N&T.  In the N&T, ISPs remove the content without investigating who actually owns the rights.  In the N&N model there is no obligation for an ISP.