Industry Canada and Canadian Heritage launched a consultation yesterday on the rules associated with the Internet service provider notice-and-notice system that was established in Bill C-11, the copyright reform bill enacted in June 2012. Responses to the consultation are due by November 8, 2013. Most of the bill took effect in November 2012, but the government delayed implementation of the ISP rules, with expectation of a consultation and regulations to follow. It has taken nearly a full year, but the consultation was sent to undisclosed stakeholders with the promise to bring the notice-and-notice system into effect “in the near future.”
The notice-and-notice system allows copyright owners to send infringement notices to ISPs, who will be legally required to forward the notification to their subscribers. If an ISP fails to forward the notifications, it must explain why or face the prospect of damages that run as high as $10,000. ISPs must also retain information on the subscriber for six months (or 12 months if court proceedings are launched). Copyright owners may also send notifications to search engines, who must remove content that has been removed from the original source within 30 days. The notices must meet a prescribed form that includes details on the sender, the copyright works and the alleged infringement.
Despite some expectation that the consultation would place several issues on the table – form issues for notices, data retention, and costs for notices among them – the language used in the consultation letter suggests that the government is likely to simply bring the rules as articulated in the law into effect with no further regulations at all. It states:
It is our goal that a system be in place that is both balanced and functional; but, most importantly, it must endeavour to deter infringement. It is not clear at this time that regulation beyond the legislation will help better achieve this. Therefore, please provide concrete evidence and empirical data, where available, to support your views. As our primary goal is to deter infringement, we will not be consulting on the setting of a fee for the transmission of notices at this time.
The government’s message is clear: it wants to get the notice-and-notice system operational and is reluctant to add new regulations or costs that might further slow that down. Interestingly, the departmental language on this issue has shifted in recent months. According to documents I obtained under the Access to Information Act, earlier drafts of the letter stated the following:
It is important that the system be balanced and functional for both copyright owners and internet intermediaries.
That sentence has now been replaced by the prioritization of deterring infringement:
It is our goal that a system be in place that is both balanced and functional; but, most importantly, it must endeavour to deter infringement.
Moreover, the documents obtained under ATIP suggest that the fees for notices was originally slated for consultation. Its exclusion, along with the move from balance to infringement, represent wins for the content industry, which have been opposing efforts to impose fees for notices and have told government that they have doubts about its effectiveness.