The longstanding debate over how Internet providers should respond to allegations of copyright infringement by their subscribers was resolved in Canada several years ago with the adoption of a “notice and notice” system. Unlike countries that require content takedowns without court oversight or even contemplate cutting off subscriber Internet access, the Canadian approach, which has operated informally for over a decade but will kick in as the law in 2015, seeks to balance the interests of copyright holders, the privacy rights of Internet users, and the legal obligations of Internet providers.
The result is a system that has proven effective in raising public awareness about copyright, while safeguarding the identities of Internet subscribers, providing legal certainty to Internet providers, and leaving potential legal actions to the courts.
Under the notice-and-notice system, copyright owners are entitled to send infringement notices to Internet providers, who are legally required to forward the notifications to their subscribers. The notices must include details on the sender, the copyright works and the alleged infringement. If the Internet provider fails to forward the notification, it must explain why or face the prospect of damages that run as high as $10,000. Internet providers must also retain information on the subscriber for six months (or 12 months if court proceedings are launched).
For Internet providers, the system creates significant costs for processing and forwarding notices. However, assuming they meet their obligations of forwarding the notice, the law grants them a legal “safe harbour” that removes potential liability for actions of their subscribers.
There are important benefits for Internet users as well. First, unlike the content takedown or access cut-off systems, the Canadian notice approach does not feature any legal penalties. The notices do not create any fines or damages, but rather are designed as educational tools to raise awareness of infringement allegations.
Second, the personal information of subscribers is not disclosed to the copyright owner. When the Internet provider forwards the copyright notice, only they know the identity of the subscriber and that information is not disclosed to any third party.
If the copyright owner is unhappy with only sending a notification and wants to proceed with further legal action, they must go to court to obtain an order requiring the Internet provider to reveal the identity of the subscriber. Canadian courts have established strict rules and limitations around such disclosures.
Moreover, the law now also limits potential liability for Internet users for non-commercial infringement, capping damages at C$5,000 for all infringements. While that is not insignificant, it does mean that threats of tens of thousands of dollars in liability for unauthorized downloading are unfounded.
The Canadian notice-and-notice system takes official effect on January 2nd, but it has been used on an informal basis for many years. Indeed, the evidence has consistently demonstrated that notifications work. For example, Rogers told a House of Commons committee in 2011 that 67 per cent of notice recipients do not repeat infringe after one notice and 89 per cent cease allegedly infringing activity after a second notice.
Those numbers are very similar to 2010 data from the Entertainment Software Association of Canada, which found that 71 per cent of notice recipients did not place an infringing file back on BitTorrent systems. Similarly, the Business Software Association told the CBC in 2006 that the notice-and-notice approach has “been most effective.”
So are there reasons for concern with the new system?
There are fears that Internet providers will be inundated with notices, particularly since the government decided against establishing a fee for forwarding them. That could lead to increased costs for consumers. Moreover, the government also declined to specify the precise content of the notices, leading to concerns that some copyright holders may include threats to sue alongside dubious demands to settle the allegations for thousands of dollars.
Should these concerns materialize, the government will need to revisit some of the notice-and-notice regulations. In the meantime, however, it rightly points to the system as a “made-in-Canada” solution that is likely to be emulated by countries around the world.
I keep wondering how we manage to hold on to our notice-and-notice policy, while simultaneously participating in these “trade deals” that are constantly pushing for more militant and inappropriate measures.
It’s more than obvious, copyright holders are NEVER happy, and they’re always in bed with the powers behind our laws and these illegal “trade deals”.
Illegal in what ways?
You’re kidding, right?!
If not, it’s probably best to say Google’s your friend.
That’s not a helpful response. Searching ‘record label illegal trade deals’ given nothing useful. Care to elaborate?
The response was to a very broad question, which, at this point in time, really shouldn’t have to be asked.
If someone asks such a question, it shows he/she has a certain amount of catching up to do on the subject of “trade deals” and the intended goals of such “agreements”. Sadly, people are only starting to wake up now to the sense that “something’s going on”.
Google is your friend. Examine some of the trade deals from the past, such as NAFTA and ACTA, and then take a look at ones currently in progress, such as TTP and TTIP.
Note the abundance of corporate protectionist clauses and “IP reforms” these “deals” always include, and at the same time. Then note the lack of actual “free trade” language, and the complete lack of transparency.
These deals are always done behind closed doors, with only corporate interests and selected members of governments being invited to take part or even know about any of it. The public is not represented, nor welcome, despite the fact that these deals literally circumvent all sorts of laws and protections of the individual countries involved.
Public money is being consumed by these “talks”, which often propose to reassign public money for corporate gain.
As I said, someone asking the question above needs to do a bit of catching up. There’s a lot of detail to absorb. I have no intention of acting as a tutor on that, so rather than supply links, I’m saying it’s best to fully explore ALL the widely available material you get by clicking on everything you see on each of these trade talks, and let that process take you through it all.
Don’t be like that. It’s easier to post a link than to be a jerk. And obviously, reading your later comment (which for some reason I can’t reply to), you’re willing to actually engage the topic enough to give some subject matter worth looking further into.
It’s not fair to complain that the public has been excluded from a process, then complain when the public doesn’t understand the process either. If you actually give a crap about it, talk to people who aren’t already on your side.
@doesntmatter @ron stop being sealions, christ.
So, you’re telling me that telling someone to do some homework on a subject is “being a jerk”? Do you have reading/comprehension problems?
Calling someone a jerk, simply because you don’t understand what’s going on around you, looks like a good way to be a real jerk.
The commenter seems to take the position that copyright holders are always in the wrong, as if the creators of digital content have no rights to what they are making. I think the reality is that content creators, as well as publishers, need want and deserve some protections even if it cramps the style of viewers who have (in some cases) developed a sense of entitlement. Likewise, the viewing community wants freedom to do what they like. This tension will never do away totally, but everybody can still get a fair treatment.
No one thinks someone who creates something should not be compensated, what people object to is someone getting paid till eternity for a song even when they’re dead or that the media companies are still using locks and region locking to keep media at different pricing or availability. That might have worked up to 1999 but were not dealing with 14.4 dial up and simple PERL script ran websites. Were at the point where there is NO reason for the media companies to have their own websites selling movies with no DRM at $2-5 per movie or $.25-.50 per track.
But they can keep beating a dead horse all they want the more you restrict it the more value it has to the ones that wan to take the risk and deliver it to the end user.
@Greg:
If you’re addressing a specific view or specific comment, you could at least clarify what or who you’re reacting to.
I’m going to go out on a limb here and assume it’s me you’re referring to as “the commenter”.
In the first place, nothing I’ve said conveys an opinion that “copyright holders are always in the wrong”. The one thing I did say was that copyright holders are NEVER HAPPY. That statement is reinforced by the FACT that they ARE in bed with those that can give their “intellectual property” enough superpower to build such a complete business model out of litigation it could literally sustain an elite lifestyle from just its legal missions alone.
The fact is, the dominant mission common to all of the insanely numerous “trade deals” we’re seeing has to do with “enforcement of intellectual property rights”. (The second most important mission of these “talks” is to override the laws and sovereignty of every country involved in order to allow large corporations to operate with impunity from those laws.)
I’ll be blunt…
You seem to be deluding yourself on where copyright ends and where the “entitlements” belong.
Copyright is not an inalienable right, it is an ARTIFICIAL right invented to TEMPORARILY supersede our natural right to share and build off existing culture. This societal sacrifice is supposed to allow a rights holder a temporary monopoly with which to profit, and the TRADE-OFF is to invest that profit into creating new works, therefore benefiting society by enriching its culture. After the temporary monopoly expires (which was originally a period of 7-14 years), the work is supposed to enter the PUBLIC DOMAIN.
The copyright holder of today doesn’t seem to recognize any of that anymore. Everything under the sun now has a copyright. The term lengths have been increased to levels beyond anything remotely sane. Extensions continue to be granted, denying the Public Domain of pretty much everything now. Every piece of IP is milked for all the revenue it can get from a court room, while new works are not being created nearly as much as logic dictates.
Copyright, bastardized in this fashion, is now counter-productive to the original concept, offering none of the intended value to society. Only lawyers and IP exploiters are making any money from it.
It would seem to me that it’s those that profit from this whole scam are the ones that have “developed a sense of entitlement”, considering they’re no longer honouring the “deal” copyright was supposed to represent.
One more thing…
Most of today’s copyright holders are not even the creators of the content in question, so to taking the stance that those who have a problem with copyright want to take rights and income from the creators is completely disingenuous, as well as misguided, inappropriate, and stupid.
Good points very well expressed !
Why did you not say this in first place? While I agree with your points and believe that both copyright and patent laws have been horribly compromised, I’d agree the ‘Free Trade” deals are morally questionable. However I’m not sure I can get onboard with ‘illegal’. They are being negotiated by our democratically elected gov.
Governments are PART of the “negotiations”, yes. However, it is the Corporate World that seems to be running the show, even to the point of writing most of the clauses in these “agreements”. These “trade talks” are the creation of BIg Business and Big Money.
Public input is never part of these events. The People are not invited to take part, and everything is done as secretly as possible, with the open admission that public participation is being avoided – it is not desired and is not on the agenda.
How is that even remotely legal? And, how could it possibly fit the label of “democratic”?? Just “…because the Government is doing it” simply isn’t a very enlightened answer. (If anything, it’s a very good reason to scrutinize every bit of it!)
I fail to see why people still even think of applying the word “democratic” to anything our governments do, and that includes the election process as well. In a truly democratic society, the People not only exercise their will on important decisions, but they also select the candidates they’re going to vote on.
I see neither of that going on anywhere.
I think you have it wrong. It’s associations (MPAA, RIAA, BSA, etc) that are acting entitled. The reason copy”right” was created was for the public good and as its not serving the publics interests (digital restrictions, causing the need of laws to restrict privacy, eliminate anonymity, and restrict speech which is all a threat to our democracies, etc) it needs to be abolished. People who create works are not entitled to profit without the consent of the people. The people are clearly not consenting and despite this the government is giving in because of unjust control that industries have over politicians via those unjust profits. In and of itself there isn’t really a major problem with the idea of copyright provided it is severely restricted. Distribution by commercial entities should be restricted, but only for a limited and reasonable period, like that was originally conceived (7 years)- but not at the cost of anonymity, privacy, and freedom of speech. We need to eliminate all restrictions on personal non-commercial use of copyright material, eliminate digital restrictions (they should be illegal, including proprietary code), and mandate commercial entities have equal access to license and distribute said content (ie so you don’t end up with monopolies as we have now). It should also be illegal to restrict regional distribution (ie Canada shouldn’t be a 2nd rate country to the US- everybody should get access to distribution at the same time).
Content creators deserve protection, because their work is extremely scarce, valuable and risky. Content publishers deserve nothing. Their work is ubiquitous, rote and privileged. Copyright exists to ensure creative work is valued economically somewhat proportionally to how it is valued culturally. Extending that framework to work that has none of those characteristics is nonsensical.
Publishers are agents for creative work. They should not be allowed to exploit their clients’ contributions to pursue their own agenda.
“Content creators deserve protection, because their work is extremely scarce, valuable and risky.”
To put it into perspective, creators deserve to be paid, certainly, with a qualifier: provided what they’re creating has value. It is that value that carries more weight than “protection”. If something has value (by all definitions of the word), people will pay for it, without the need to “enforce” some sort of payment every time they look at it, think about it, or refer to it in a video or new article, etc. And once that value has been realized, after a reasonable amount of time, the creator should be moving on to something else (if “creating” is what he/she makes a living on) and the works should add to the Public Domain.
Straying from that central concept is where we get the problems with copyright we have today. “Protecting” the works and “maximizing revenue” through litigation and threats of litigation seem to be today’s version of a business model.
Another problem is that creators too often sell the rights to their works, which then become entangled by the described business model, which only throws back a pittance to the creator. The actual IP holders is these cases do a very good job of tainting the works (and often the reputation of the original creators in the doing), while keeping the majority of the profits to themselves (investing a lot of it in “enforcement” of their IP). This also has the (unintended?) effect of discouraging creators from creating more works in the process.
The fact that rights holders continue to apply for longer and longer terms of copyright is proof in itself that they’re quite content to build a business model on milking each and every piece of IP, rather than add to culture by having more works created.
After reading up to this point I fully agree with everything your saying. If I were to create something and sell it I should get a profit. Now when it comes to large corporations milking every cent out of the public over and over again it jsut gets ridiculous. This whole world society that were growing into is sel centered and completely backwards. I was having a conversation just today actually about how when I was a child 30 years ago and kids were asked what they wantewd to be when they grew up answer would involve, doctors or cops or those type of professions. Nowadays everyone wants to be a music or movie star… work for 2 years. Make millions. How about we all stop inflating EVERYTHING on the market so that the rich stop getting richer.
It just boggles my mind how for example a movie company can pay an actor that much money for such dismal work. I seen some post a few days ago about taylor swift who just spent 17 MILLION on her new house on a beach. Shes only been around for a few years and somehow a teenage human is able to accumulate that much money to blow on a 20 room house. Give me a break.
Imagine a world where the doctors who arte saving lives walk out of the hospital and have paparazzi snapping pics of them and shoving mics in their faces asking who mny people he saved that day. Or fans swarming the aftermath of a big fire and cheering on the fire fighters. Wouldnt that be a crazy world.
Sorry went a bit off topic there but it all ties into the same logic in the bigger root of the problem.
Anyways Devils advocate. I understand what your saying and totally agree with what your trying to enlighten other with.
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It will be interesting to see if any copyright owners will find it worth proceeding to court with the $5k cap…I’m not certain that some of the bigger players will be satisfied with a quiet notice when they have been using big fines (and big publicity) to announce their potential losses from “pirating”. I would be curious to understand what the new law will use as a definition for non-commercial infringement (seems to me this could be up for debate down the road).
It has become standard practice to incorporate such “broad” terms into all new “intellectual property” laws these days. They blatantly leave “holes” for all sorts of big players to exploit and continue their pursuit of “pirates”.
This is but one of the many ways they demonstrate how their commitment to their corporate buddies will never take a back seat to public interest.
What we’ll probably see is more settlements if a rights holder really wants to move ahead than actual expensive court battles for $5k.
But still $5K cap makes things more in line with the actual value of a download. Tens of thousands of dollars per download is absurd, you’re better off actually stealing a CD or DVD from the store in that case haha.
This is going to jam up the courts so bad … corporations are rubbing their hands with glee though!
Anonymity, adjective “anonymous”, is derived from the Greek word ἀνωνυμία, anonymia, meaning “without a name” or “namelessness”. In colloquial use, “anonymous” is used to describe situations where the acting person’s name is unknown.
http://en.wikipedia.org/wiki/Anonymity
I’m curious as to how many of these users who received notices from their ISPs actually stopped downloading illegal content vs. how many set up some sort of VPN/proxy service and simply appear to have stopped.
“…in 2011 that 67 per cent of notice recipients do not repeat infringe after one notice and 89 per cent cease allegedly infringing activity after a second notice.”
LOL That’s exactly what I was thinking.
It’s more than obvious, copyright holders are NEVER happy, and they’re always in bed with the powers behind our laws and these illegal “trade deals”. Anonymity, adjective “anonymous”, is derived from the Greek word ἀνωνυμία, anonymia, meaning “without a name” or “namelessness”
^^I just can’t see what this type of bot is supposed to achieve.^^
You’ll notice he has a URL attached to his name, it’s designed to catch your attention and incentivize you to click on the possibly malicious hyperlink under his username
Yeah, that part I know.
It’s the simple echoing of what someone else has posted that doesn’t seem to make sense, if the idea is to draw clicks on a malicious link. I just find it a curious piece of “social engineering”.
I am curious if anyone has seen any legal opinion on what ISPs should do with the demand notices that Rightscorp have been sending out. I have been on the receiving end of an absolute deluge in Rightscorp extortion emails aimed at my customers, and I certainly do not want to send those along unaltered. As a second part to this, I wonder if anyone has seen a legal opinion on altering the notices so they only include “the sender, the copyright works and the alleged infringement” and cut out threats under US law or demands for payment a la Rightscorp. Thanks for any insight anyone can offer on these points.
I would imagine you could include a cover letter with the notice that spells out the CANADIAN LAW RE the “EXTORTION” threats and how you is the ISP has done/will do legally
I just wish the reading of Sections 41.25 and 41.26 of the Copyright Act explicitly imposed limitations on what ISPs are obliged to forward. Considering I am liable for statutory damages between $5000 and $10,000 for failing to forward, it puts me in the position of erring on the side of forwarding, even when the notices are citing US law, and making demands of alleged infringers that are inappropriate and bordering on illegal. This is a really uncomfortable position to be in, we take a lot of pride in the relationship of trust we have with our subscribers, and I feel like I owe it to them to protect them from extortionate demands like Rightscorp are making. However, at a risk of being made to cough up $5-$10k, there’s a limit to how much we can shield our users. We are looking at including cover letters with notices, but we have to be careful because it’s a fine line between stating the facts and offering legal advice.
As far as “fears that Internet providers will be inundated with notices” go, we already are being inundated. We operate a relatively small ISP, and it is not unusual for us to receive over 75 notices in a single day. It’s madness we are expected to deal with this for free, under threat of statutory damages.
Year ago when I worked for an small Canadian ISP anytime we receive a letter or a lawyer call from the US stating some US law is being broken they go the same response. Come back with a Canadian court order and we’ll talk, other wise pound sand.
The problem is, at least as far as I understand it, there are international treaties that effectively say “we will enforce each others copyright laws and have at least X number of years of protection for rights holders”. You still might have to go to a Canadian court to get the supoena/legal action started but unfortunately our government is required to play along with our more restrictive neighbors.
Unfortunately, with the way the law is worded, as an ISP we are obligated to forward the copyright notice if the notice complies with subsection 41.25(2), and even the wacky-borderline-criminal Rightscorp demand notices “comply” – at least enough to compel us to forward them on. Certainly if a copyright holder tried to get subscriber information from us, we’d insist on a subpoena for that data, but that doesn’t provide any legal cover for the notice-and-notice regime.
my reference “threats and how you is the ISP has done/will do legally” I was referring to including the LAW and YOUR privacy statement regarding forwarding of information IE you do NOT disclose the users ID back to the RIGHTS holder
as I assume a lot of NON informed users would believe/assume that the ISP HAS given up information back to the rights HOLDER/ENFORCER
Yeah, that’s a good idea for something to include in our “wrapper” for the notices we forward. We certainly don’t want our users to believe we would divulge their identity to copyright claimants unless a court compelled us to – because we wouldn’t. I was mostly kvetching about the Rightscorp ones where I really want to be able to tell our users not to pay the extortion demand, or wishing for legal cover that would allow us to strip out the extortionate demand from the notices.
Copyright law includes the right to
publish, reproduce, perform, transmit and show a work in public [1]
copy, adapt, distribute and perform a copyrighted work [2]
Uploading is distributing and can constitute a copyright violation. Downloading is not distribution. Sharing links to copyrighted material is similarly not distribution of the work the link points to.
Hence, the term “illegal download” does not make sense. Why is it being used both on Slashdot as well as in this article?
[1] Wikipedia
[2] Copyright Board Of Canada
“…the term “illegal download” does not make sense.”
This is the scam we’ve been subjected to for quite some time. Kinda like the “War on Drugs” or the “War on Terror”. First, we’re given a “bogeyman” (like “pirates”) to blame for some fabricated problem (like “billions and billions in lost revenue”), and we end up with a non-existent crime (“illegal downloading”) that we apparently need desperately to deal with.
And, like the above-mentioned “wars”, the goal is the same for “pirating”. Special interests want you to believe there’s a need for you to sacrifice some of your legal rights that are preventing them from “maximizing their profit”.
I only wish more people were awake about this bogus charge. Too many have been illegally harmed by it already.
I really haven’t a problem with copyrighted material protection in general. What I do have a problem with however is when that argument is used to initiate a system of control as to how I watch or listen to that material and/or what device or how many devices I can access it on, regardless to if I have purchased it or not.
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So whats the difference here ? I watch a movie online that I don’t own for personal use “Stream/download” call it whatever. I don’t own the rights, so that’s then illegal.
Now I read a book/magazine at Barnes & Noble *which they allow* and when finished I put the book back on the shelf & leave without purchasing the book. How is that not considered the same ? I viewed the content for free, couldn’t the copyright owners of the book sue the pants off of the book store for “providing/uploading” ? Why isn’t the government cracking down on illegal bookstore reading ?
Hey Michael,
Question for you. I thought I read that the new law also prohibits someone from streaming a movie or television show online. And that this too was illegal. Am I correct in how I interpreted it? This isn’t just about downloading. But streaming too?
Thanks.
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I get the impression that the courts are going to find themselves overloaded with requests like in the US, where DMCA requests abound.
There needs to be consequences to prevent that, otherwise they can literally spam for requests and along the way, the legal system will be stuck … and in some cases, many people who were innocent will be accused wrongfully.
That and this will be even worse for our privacy. They’ll have to monitor people, most of which are entirely innocent.
I fear that government is in bed right now with the copyright lobby groups. They will never be satisfied, so I’d argue a government acting in the best interests of society would not have passed this.
How do these new regulations affect non-Canadian companies providing services in Canada?
ie. Does a swedish VPN provider with servers in Canada need to comply?
Does this law apply only to ISPs or does it also extend to VPNs? Clearly ISPs have to keep logs on the customer for six months, but do VPNs? Does it make a difference whether the VPN is Canadian or a foreign VPN with Canadian servers?
IANAL, but I would would expect that a VPN provider offering a VPN end-point in Canada would be an “ISP” under this law, and be obligated to comply with it.
41.25 (1) States: An owner of the copyright in a work or other subject-matter may send a notice of claimed infringement to a person who provides
(a) the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic location that is the subject of the claim of infringement is connected to the Internet or another digital network;
If that VPN end-point in Canada is the “electronic location” “connected to the Internet” through which the infringement occurred, then I think it falls under the Act. In short, it’s a Canadian Law that a foreign provider of services in Canada would probably be expected to comply with.
That being said, one could try and find an “out” in 41.26 (1) (a) which allows that it may not be possible to forward the notice, and one may be able to claim that since the end user of the connection was not in Canada, that it is not possible to forward it to them. That would still require a response to the claimant to explain this, and short of that being tested in court, I don’t know if one could get away with that. Maybe an actual lawyer could speak to that.
The real danger there is the statutory damages between $5000 and $10,000 for failure to comply. This is probably not a problem one should ignore in the hopes that it will go away, while infringement notices pile up. If I was a foreign entity providing services via VPN through Canada, I would certainly be calling my lawyer about it, if these notices are not an uncommon occurrence.
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Damn – does this mean all the cassettes I recorded off the radio in the 1980’s are copyright infringments?
Yes. You should be ashamed.
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What I dont understand is how they can go after the end users. Its all a big ploy to suck extra money out of people. If they really wanted to stop the “madness of illegal downloading” then they would go after the uploaders that video cam the new movies or hottest new music. not the unknown number of people that happen tp “walk by” and grab a copy of it. They dont want the downloading to stop, they want it to continue so they can keep chasing extra funds.
For example I know of this torrent site and have gotten a letter from my ISP years ago. Anyone notice its almost ALWAYS Warner Bros. “sellouts”? Or is tat just me. Now as an IT tech I’m going it over in my head. If I’m gonna download something from a torrent site whic goes from a torrent site to peers through my their ISPs to my ISP… where along the line does warner bros get wind that I’m downloading anything? Im kind of confused about that still. If I hacked into warner bros website or servers and downlaoded something then sure… chase me down and handle your shit. when I go to an completely seperated website and share a file with comepletely random peers. no where in that process should any movie company be even ABEL to see who what where and when i downloaded anything. So it would seem that movie companies have gotten our ISP to red flag certain signatures of data. I mean how in the underlining 1’s and 0’s language does warners know that some guy who cammed a copy from a chinese theater across the world and shared his personal data online that I downloaded. I can only guess that they have hired people that go to these sites. download their own copy and hand over the data to the higher ups who i turn whine to the ISPS who in turn whine to us… Maybe I”m missing something. If so please enlighten me. cause the whole thing about chasing the “little People” has always seemed fishy.
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