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    Government Launches Consultation on Rules for ISP Notice-and-Notice System Amid Shift in Priorities

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    Thursday October 10, 2013
    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:

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    Government To Delay Implementation of Bill C-11's Internet Provider Rules

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    Wednesday October 31, 2012
    The government is slated to bring Bill C-11, the copyright reform bill, into effect next week without the "notice-and-notice" rules for Internet providers. The revelations come in a Privy Council document that provides notification on when the bill will come into force. It is expected that the order bringing the bill into effect will be published on November 7, 2012. The majority of the bill will take effect on that date, including fair dealing reform, new consumer exceptions, caps on statutory damages for non-commercial infringement, the user generated content provision, and the digital lock rules. There are two notable exceptions, however.

    First, the Internet service provider "notice-and-notice" rules will not take effect. The implementation has been apparently been the subject of fierce behind-the-scenes lobbying over issues such as the fees for processing notices and the retention of subscriber information. The public has not been included in these discussions and more open policy process is needed in developing the notice-and-notice regulations.

    Second, several sections related to the WIPO Internet Treaties will also be delayed until those treaties come into force for Canada. There are lingering questions over whether Canadian law is fully compliant with the WIPO Internet treaties, particularly with respect to the private copying levy. Moreover, Canadian policy now requires the government to provide the House of Commons with at least 21-sitting days for review of a treaty before taking legal steps to bring it into force. The tabling of the treaty must include an explanatory memorandum. This suggests that these provisions may be delayed and that the House of Commons may have some further debate on the WIPO Internet treaties - perhaps including why the government went far beyond treaty requirements - whenever the government does pursue bringing the treaties into force.
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    61 Reforms to C-61, Day 41: ISP Notice and Notice - Mandatory Data Retention

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    Monday August 18, 2008
    One of Bill C-61's few good points is the notice-and-notice approach for Internet Service Provider liability. The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization.  The ISP forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.  It falls to the subscriber to act and experience indicates that many remove the infringing content (if indeed it is infringing) voluntarily.  If ISPs comply this approach, they qualify for a statutory safe harbour such that they will not face monetary damages (though they may be ordered to remove content).  Failure to comply with the approach can bring liability of up to $10,000 in statutory damages.

    This is the same approach that was proposed in Bill C-60 and that has been used on an informal basis in Canada for several years with groups like the Business Software Alliance acknowledging its effectiveness. The rationale for sticking with notice-and-notice rather than the U.S.-style notice-and-takedown becomes even more compelling in light of the U.S. experience.  Studies have demonstrated that notice-and-takedown is flawed, open to abuse, and may lead to improper claims of infringement.  While there may be pressure from the U.S. and lobby groups to move toward notice-and-takedown, the experience to-date provides plenty of reasons why that would be a mistake.

    While the overall approach is a good one, there is some room for improvement.  First, as pointed out in the policy position on C-61 adopted by the British Columbia Civil Liberties Association, the approach creates new data retention requirements with no judicial oversight.  In order to qualify for the statutory safe harbour ISPs are required to retain customer data for six months from the time they receive the complaint (they retain for up to a year if the complainant launches a legal action).  While there is a need to retain some data for this system to work, six months is a long period of time -- shorter periods and some form of oversight should be considered.

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