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Copyright Infringement Online
In Canada, Internet Service Providers (ISPs) are obligated to notify users of any complaints of copyright infringement made against them by the copyright holder when submitted in the proper form (the "notice and notice" regime). In the U.S., ISPs are obligated to take down infringing material when in receipt of a proper notice from the copyright holder (the "notice and takedown" regime). These regimes are particularly useful where, as is often the case, a copyright holder does not know the identity of the infringer. The notice and notice, and notice and takedown, regimes make it possible for the copyright holder to nonetheless contact the individual with the help of an intermediary, the ISP. Further, if the material in question is posted on a social media network such as Facebook or Instagram, the infringement can be reported to the outlets directly to ensure that the post is removed. In some cases, sending a cease-and-desist letter may put a stop to the infringement. If none of the above avenues work, you may consider litigation. In the remainder of this article we will discuss all these options.
The "Notice and Notice" Regime in Canada
Under the "notice and notice" regime that came into force in 2015, a copyright holder can send a notice to an ISP who hosts a website containing infringing material. This notice, if it meets the requirements set out in the Copyright Act, will then be forwarded to the alleged infringer. A copyright holder can identify the ISP hosting the website with the help of any number of free online services. One such example is Whoishostingthis.com.
A valid notice includes the claimant's name and address, identifies the material that has been infringed and the claimant's interest or right with respect to that material, specifies the location data (i.e., a link to the infringing material), and specifies the nature, date and time of the alleged infringement. Following the sending and receipt in Canada of many notices which included offers to settle or demands for payment, the government amended the Canadian Copyright Act to explicitly set out that notices of claimed infringement may not include nor refer to such offers or demands, such as by means of a hyperlink to such an offer, request or demand. Additionally, notices may not include a request or demand for personal information. The ISP is obligated to forward any notice that meets the above requirements to the alleged infringer "as soon as feasible". Then the ISP must either notify the copyright holder that the notice has been forwarded or, if applicable, explain why forwarding the notice was not possible. The ISP may take down the infringing content, but they are not legally obligated to do so. They will also not be liable in any copyright infringement suit; any potential liability rests on individual users. The user who receives a notice of alleged infringement from an ISP is also not yet under a legal obligation to take the material down or take any other action for that matter such as contacting the copyright owner or the intermediary. Moreover, receiving a notice does not necessarily mean a user has in fact infringed copyright nor does it mean an infringement action will be commenced against the user.
Despite the lack of legal bite, the notice and notice regime can still be useful if you see your copyrighted work reproduced online without your permission. Flagging the infringement to an ISP can cause them to remove the offending content. Notifying the user of the infringement and the potential for a court proceeding can encourage them to comply with your terms by taking down the content.
The unfortunate practical reality of the notice and notice regime is that, because it does not require any form of compliance or response, many recipients will ignore it altogether. When combined with the fact that most notices are emailed to recipients and lack the formality of a mailed letter, notices often do not produce the response that copyright holders hope for. Further, copyright holders can only receive up to $5,000 in statutory damages for non-commercial infringement.
The "Notice and Takedown" Regime in the U.S.
In comparison to the notice and notice regime, the U.S. notice and takedown regime is more favourable to copyright holders. According to this regime, ISPs must take down any content for which a copyright infringement notice is submitted, subject to certain requirements and conditions. Note that this is true irrespective of whether the copyrighted work is formally registered with the U.S. Copyright Office.
The Digital Millennium Copyright Act (DMCA) requires copyright holders to submit a notice to ISPs which must include: the sender's contact information, sufficient detail regarding the copyrighted work, sufficient detail to allow the ISP to identify the infringement in question, a statement alleging a good faith belief that infringement has occurred and is not subject to any defences, a statement alleging accuracy, and a signature (an electronic signature will suffice). The statements comprising the notice are made under penalty of perjury, meaning the consequences of a false notice are steep, and copyright holders should be sure that the notice they submit is true and accurate.
The ISP hosting the content must take it down promptly upon receipt of the notice. It must also notify the alleged infringer that their content was removed and provide the reasons for the removal. At this point, the alleged infringer has the option of filing a counter-notice. To be valid, the counter-notice must provide the user's contact information, identification of the removed content, a statement under penalty of perjury that the user believes the content was mistakenly taken down, a statement consenting to the jurisdiction of the relevant U.S. federal court, and the user's signature (an electronic signature will suffice).
If the alleged infringer does not submit such a counter-notice or the counter-notice is not deemed valid, there is no further action the copyright holder needs to take. If a valid counter-notice is submitted, the ISP has the obligation to notify the copyright holder. The copyright holder can then choose to pursue legal action through the courts. If a lawsuit is filed within a particular time frame, the ISP will not be permitted to put the material back up until a judgment is rendered. However, if there is a valid counter-notice and the copyright holder does not pursue legal action within the prescribed time frame, the content will be restored online.
When compared to the notice and notice regime, the U.S. regime under the DMCA is more advantageous to copyright holders. A lack of response from the alleged infringer still results in positive results for the copyright holder. Further, mandating ISPs to take down disputed content until there is a legal ruling on the matter ensures that no irreparable damage is done to the copyright holder throughout the (likely lengthy) litigation process.
Note that because the notice, in the U.S. and Canada alike, is sent to the owner of the IP address associated with the infringement, it may be that the notice is received by a third-party and not the party directly responsible for the infringement – for example, a business owner, or a parent.
Cease and Desist Letters
If a copyright holder can identify the infringer (whether as an individual or a company) in Canada, they may decide to send a cease and desist letter instead of using the notice and notice regime.
A cease and desist letter is somewhat similar to a notice within the notice and notice regime in that it does not yet legally require the recipient to take action. The two substantial differences are that it is sent to an individual recipient, which requires the copyright holder to know the infringer's identity, and that it is sent directly from the copyright holder to the infringer (rather than through the intermediary ISP).
Because of its more tailored nature, the cease-and-desist might be more effective in eliciting a response from the infringer and opening a channel of communication.
If you are a copyright holder hoping to stop infringement with a cease-and-desist, please contact us, as our lawyers will be able to assist you with drafting an individualized and persuasive letter. A more detailed explanation about how cease and desist letters work and how to identify whether you have been sent one, check out this article on cease and desist letters.
Social Media Copyright Policies
If you believe that the reproduction of your work on social media has infringed your rights or your ability to profit from the work, you should consider taking action. The first step to explore may be to message the infringer and explain your claim to the work. If the user does not respond or refuses to comply with your request, consider telling them that you will report the incident to the copyright support services overseeing the social media platform.
To report the infringement directly to the platform, you will need to file a statement through the help center of the social media platform on which it has occurred. In some cases, such as on Facebook, you will need an account to be able to fill out the form. Although each major platform has their own policies and requirements, they largely conform to the DMCA requirements outlined above, as most social media sites are based in the US.
For more specific information on individual social media platforms and links to the infringement forms, please see the Facebook, Instagram and Twitter guidelines.
Litigation
If none of the above options yield a desired result, a copyright holder has the option to pursue an injunction or damages in court through litigation. Given that litigation tends to be both expensive and lengthy, most copyright holders will prefer to exhaust the above options before considering enforcing their rights in court. If the identity of the infringer is unknown, you can start a legal proceeding against the person who owns the IP address associated with the infringement and bring a motion to have the ISP disclose the identity of the infringer.
Site Blocking Orders
In May of 2021, the Federal Court of Appeal confirmed the availability of another powerful tool to copyright owners engaged in enforcing their rights. In the Teksavvy Solutions Inc. v. Bell Media Inc. case (2021 FCA 100), the Federal Court of Appeal upheld the lower court’s decision which granted the plaintiff copyright owner an injunction against third-party internet service providers (ISPs) which had the effect of compelling the ISPs to block access to the defendant’s websites via which the infringing material was being made available. As all access to the internet depends on an ISP, when all ISPs are enjoined from permitting such access, no one can view the impugned content. This landmark decision could therefore have huge implications for piracy and copyright infringement going forward.
If you find yourself faced with infringement of your copyright online, and are wondering whether litigation or another avenue for recourse is worthwhile, contact us for a complimentary and confidential initial telephone appointment with a member of our team.
