Amanda Carpenter is a JD Candidate at Osgoode Hall Law School.

On June 2, 2010 the Federal Government of Canada introduced the Copyright Modernization Act (or Bill C-32) that proposes to amend the Copyright Act to better address the “challenges and opportunities presented by the digital age”. The Bill comes about two years after its predecessor Bill C-61 was introduced and about five years after Bill C-60 was introduced, both of which died before they became law. Bill C-32 is a much needed amendment since the Copyright Act contains laws that have not been updated since the late 1990s, and the digital landscape has of course much evolved since then. Although some provisions in Bill C-32 do differ from Bills C-60 and C-61, many of the provisions affecting the status of Internet Service Providers and search engines do not differ greatly from those introduced in Bill C-60 proposed in 2005. For example, in the proposed Act is the clarification that ISPs and search engines (which would fall within the Act as providers of an “information location tool”) are exempt from liability when they act strictly as intermediaries in communication, caching, and hosting activities.

ISPs will be required to discourage infringing uses of their facilities by participating in a “notice and notice” regime, which will require them to forward any notice they receive from a copyright owner to a subscriber who is alleged to be engaging in infringing activities (ss. 41.25 to 41.26 of the proposed Act). An example of an infringing activity is the making available of copyrighted content without authorization. The ISPs play a significant role in curbing infringing activities of subscribers because very often they are the only parties who can help rights holders identify those who are alleged to be infringing copyright, and without whom rights holders could not properly enforce their rights on the Internet. 

This regime has been in use in Canada since ISPs such as Telus have voluntarily agreed to distribute notices to their customers, and in 2007 Telus was sending out an average of 4,000 notices every month. An example of what an infringing user would receive in a notice is: "This unauthorized copying and distribution constitutes copyright infringement under applicable national laws and international treaties. We urge you to take immediate action to stop this infringing activity and inform us of the results of your actions”. Bill C-32 additionally stipulates that a notice of claimed infringement must 1) state the claimant’s name and address; 2) identify the work to which the claimed infringement relates; 3) state the claimant’s interest with respect to the copyright in the work; 4) specify the location data for the electronic location to which the claimed infringement relates; 5) specify the infringement that is claimed; 6) specify the date and time of the commission of the claimed infringement; and 7) contain any other information that may be prescribed by regulation.

Although the “notice and notice” regime causes some to worry about privacy concerns, an article from the CBC reports that ISPs such as Telus maintain they do not pass any personal information, such as user names or addresses, to any of the groups initiating the notice e-mails. However, the Canadian Bar Association has in the past expressed worry in regards to the growing concern that ISPs are monitoring or investigating their customers.

Michael Geist has argued that this regime is an improvement to the U.S. “notice and takedown” regime, which requires an ISP to remove or disable access to material upon receiving a notice from a rights holder that alleges such material to be infringing. Geist maintains that this regime creates incentives for ISPs to remove content without warning or evidence of actual infringement, which can potentially lead to a stifling of free expression. Another argument in favour of the “notice and notice” regime is that it would address peer-to-peer (P2P) file sharing more effectively than a “notice and takedown” regime would since the files used in P2P file sharing are actually located on the computers of the persons engaged in sharing. 

On the other hand, Barry Sookman argues that the “notice and notice” regime may be inadequate and that a “notice and takedown” system “is required to effectively deal with operators of pirate sites that infringe content on a substantial scale and to deal promptly with time-sensitive postings”.

Additionally, under Bill C-32, ISPs will be required to retain a record of this notification, including the identity of the alleged infringer, for use if court proceedings were to follow (s. 41.26(1)(b) of the proposed Act). ISPs that do not retain such records or fail to forward notices would be liable for statutory damages in the $5,000 to $10,000 range. After forwarding and retaining records relating to a notice of claimed infringement, there is no further action that the ISP is required to take. Finally, copyright owners are limited to the remedy of an injunction when it comes to copyright infringement proceedings against a provider of an “information location tool” that is found to have infringed copyright by making a reproduction of the work or communicating that reproduction to the public by telecommunication (s. 41.27(1) of the proposed Act).

In conclusion, Bill C-32 would bring changes to the status of Internet Service Providers and search engines liability that have very much been needed to be passed into law for years, and which would better address the challenges and opportunities presented by the Internet and digital technology in general.