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A look at Canada's answer to the US's DMCA copyright takedown system

Game lawyer Zachary Strebeck looks at the differences between the U.S. copyright takedown regime and the soon-to-be-implemented Canadian system.
On January 2, 2015, Canada’s new system for notifying ISPs of potential copyright infringement goes into effect.

On January 2, 2015, Canada’s new system for notifying ISPs of potential copyright infringement goes into effect. Called a “notice and notice” system, it differs from the existing system of DMCA takedown notices in the U.S. Let’s take a look at these differences and how both systems work.

The U.S. takedown system under the DMCA:

As part of the Digital Millenium Copyright Act’s modifications to U.S. copyright law in 1998, a system to notify ISPs that they are hosting infringing material was implemented. Generally, there are a few steps in the process:

  • Copyright holder sends takedown notice to ISP;
  • ISP removes access to material and notifies the uploader;
  • Uploader may then file a counter-notice, alleging that they have the right to use the material;
  • Copyright holder must then file a lawsuit and notify the ISP within 14 days or the material will be reinstated.

The new Canadian system:

Canada’s Copyright Modernization Act, which came into effect in 2012, directs regulators to institute the “notice and notice” system of copyright infringement notification. With regard to ISPs, the system works as follows:

  • Copyright holder sends notice of infringement to ISP;
  • ISP must forward the notice to the uploader “as soon as feasible”;
  • ISP must inform the copyright holder that it was forwarded or why it is not possible;
  • ISP must retain record of the notice for either six months or a year (if the copyright holder files a legal claim).

The big difference:

In the U.S., the alleged infringer is deemed guilty upon notice, unless they file the counter-notice in their defense.

The big obvious difference between the two statutory schemes is that, in the U.S., the ISP is required to do a takedown upon notification. In Canada, they must simply notify the alleged infringer.

It’s a philosophical difference, I suppose. In the U.S., the alleged infringer is deemed guilty upon notice, unless they file the counter-notice in their defense. One could argue (and I’m sure that many do) that this is an unfair system that has the opposite effect of the rest of our justice system (innocent until proven guilty). Our takedown system here does not take into account Fair Use, a tricky part of copyright law that requires an analysis that an ISP generally does not want to undertake.

In Canada, the onus is on the copyright holder to bring a lawsuit in order to solve the issue. This notification system, however, could serve to eliminate needless lawsuits in many cases where the infringement is inadvertent or due to ignorance about copyright law.

Which system is better? Both have their advantages, depending on who you are – the copyright holder or the alleged infringer. Leave a comment below and let me know what you think.

Need to file a DMCA notice or counter-notice? Why not hire a game lawyer to analyze the situation and make sure that the notice contains the right information?

photo credit: thor_mark  via photopin cc

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