Notice-and-notice regime in Canada: Don't include a settlement offer in your copyright infringement notice

Under the “Notice-and-Notice” regime, copyright owners may send a written notice to any Canadian they suspect of infringing their copyright through an internet service provider or host. These notices must contain information such as the copyright owner’s name and address, details about the allegedly infringed work, location data to which the claimed infringement relates, and the date and time of the alleged infringement. Until recently, the Copyright Act placed no restrictions on what could otherwise be included in these notices.

On December 13, 2018, Parliament approved amendments to the Copyright Act that restrict the content of notices sent under the “Notice-and-Notice” regime. Going forward, notices of claimed infringement shall not contain: (a) an offer to settle the claimed infringement; (b) a request or demand, made in relation to the claimed infringement, for payment or for personal information; or (c) a reference, including by way of hyperlink, to such an offer, request or demand. A non-compliant notice does not trigger the obligation of the internet service provider or host to pass the notice on to the alleged infringer and to otherwise preserve that person’s identity for subsequent enforcement proceedings.

The government previously expressed concern with the bulk mailing of standardized letters that used the “Notice-and-Notice” regime to request monetary settlement for unauthorized online uses. The above-noted revisions to the Copyright Act appear designed to address this concern.

These new restrictions are the result of amendments to the Copyright Act by Bill C-86, the Budget Implementation Act, 2018, No. 2, (the “Bill”), which received royal assent on December 13, 2018. As canvased in our earlier report^[1], the Bill contained several amendments to various pieces of existing Canadian intellectual property legislation.

By Stéphane Caron and William Foster, Gowling WLG

[1] https://gowlingwlg.com/en/insights-resources/articles/2018/first-reading-bill-c-86/

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