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

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.


  1. “It is important that the system be balanced and functional for both copyright owners and internet intermediaries.”

    but f*ck Canadian internet users, they don’t matter. Good to see my government is looking to keep MY rights balanced as well.

  2. Scott Elcomb says:

    Why bother?
    The 2009 Copyright consultation has come up in several recent conversations – one in particular that’s relevant here:

    I don’t want to particpate. No, that’s not quite right: I *do* want to participate.

    I just don’t want to be ignored.


  3. Ignorance
    Their definition of deterring infringement will simply be further business for VPN providers.

    Why do various countries with sane laws continue to pass crap that time and time again has shown to have absolutely zero effect on infringement in other countries that have had far worse policies for years?

    The US went one step further with the copyright alert system, which isn’t even proven and unlikely ever will be, just like the big massive failure of Sarkozy’s baby, HADOPI.

    I guess its easier for the Canadian government to be blind and solely listen to these so-called “stakeholders” (tip: the public are stakeholders too), and ignore whats happening in the rest of the world.

  4. There’s nothing balanced with respect to notice to notice in the first place. The only balance with respect to non-commercial infringement would have been to remove the statutory damage awards and let content providers go after people for actual damages. Since there is no actual damages caused by a non-commercial download with now massive amount of research to back that up, it would have settled things right then and there.

    Notice to notice has always been about deterring infringement when there’s evidence that non-commercial downloads should be facilitated to bring in growth to the content industries.

    The main pushers for the notice to notice approach during the consultations was yourself Michael and the ISPs. I don’t remember very many users supporting this approach to begin with.

  5. Lets not forget that we in Canada have some of the worst legal alternative services in the developed world.

    Sure we have Netflix, but its an extremely limited version compared to what the US gets, and after many years we still don’t have Spotify.
    What exactly is the content industry doing in Canada to deter piracy? Too busy changing the laws rather than provide decent legal alternatives?

    Any industry thats unwilling to provide any decent legal services should NOT be able to lobby to change laws just to suit them.

    It would be like going to and having it spit out an error that their service isn’t available in many of the G20 countries.
    Games obviously have far less regional licensing red tape, and the movie and music industries should take note for once in their limited remaining lifespans.
    Instead they rather than bitch and whine for new laws and crippling restrictions upon every single piece of technology we own or is upcoming, all while giving everyone a good enough reason to infringe in the first place.

    Blah blah its illegal, only because the industry lobby made it that way and they spent millions to do it.
    Better direct that funding to decent legal services instead. Probably not in my lifetime. Canadian’s are like the very last to get anything but some of the very first to be shafted.

  6. Chris Brand says:

    No fees for sending notices to ISPs, and no penalties for false notices as far as I can see. Essentially the only cost to content owners is the time to send these things out. Makes you wonder how long before ISPs (and users) and completely snowed under with these things. Of course there will be some costs involved for the ISPs, and of course those will be passed on their customers.

    At least we remain innocent until proven guilty.

  7. @Chris Brand
    I have no sympathy for any ISP regarding this issues, especially those who lobbied for this approach to begin with. As far as I am concerned they are just as guilty trying to make a profit off of this with respect to costs associated, than actually sticking up for consumers and users. As far as I’m concerned these costs should be regulated and the ISPs pick up the tab exclusively since they’ve lobbied for this approach to begin with. Tax payers and users should not be forced to pay into something they strongly disagree with.

  8. @Chris Brand
    Also in so many ways we’re guilty until proven innocent with respect to the ideology around non-commercial infringement. Notice to notice is a form of mass surveillance that was lobbied by the ISPs, it also plays into the troll approach to things since there’s virtual no economic downfall to a non-commercial download.

    Those that lobbied for this approach went against not just what Canadian creators were calling for with respect to legalizing non-commercial downloads, but went against the vast majority of consumers and independent researchers responding to the consultations. Part of the problem is with the ideology surrounding non-commercial infringement. An ideology that is not just flawed, but put to the economic test in an independent judicial setting wouldn’t stand the smell test. Those that lobbied for the notice to notice approach in the last consultations had an excellent opportunity to change ideology surrounding non-commercial infringement and instead when the other way to try and make a quick buck off of it. In a perfect world we would have a telecom market that cares about consumers and is competitive.

  9. I’m guessing they’re mostly going after torrent users,what about cloud services? Are they saying they want to charge us if we get a notice or charge the Internet company?

  10. Teksavvy
    I was also wondering whatever happened in the Teksavvy vs. Voltage court case,last I heard was the judge went on summer break and would resume after.

  11. @Anon
    Widely expected that the court will release contact information of its customer(s) based on spotty evidence Voltage provided since that evidence was not opposed by Teksavvy.

  12. Even when the notice and notice takes effect I don’t see anything changing much and these court cases may all just be thrown out,I don’t see they have much time for this rubbish in court. Maybe a few cases will get the heavy uploaders but these guys are usually smarter than the blood sucking copy right trolls.

  13. @JKL
    It was pretty clear that consumers nor Canadian creators don’t have time for this rubbish in the consultations. It’s too bad a lot of mixed signals were coming from those representing pro-consumer positions that supported the notice to notice approach. Many politicians in committee took Michael’s view of things as representing that of the consumers due to his Fair Copyright for Canada movement. That wasn’t really the case. Wish more paid closer attention to what was posted in the consultation forums.

    I’d expect ISPs and those calling for the notice to notice approach now to try and deflect that blame to government now after the notice to notice they’ve lobbied for comes into effect and isn’t getting much fan fair from anyone. Really wish those supporting telecom especially indie’s that supported the notice to notice approach actually start becoming in line with the very true Canadian view on all of this, rather than shooting for the old mighty bucks, and protecting their egos. You lead from in front, not from behind. Hope that message gets through now to those that supported this notice to notice approach.

  14. Angry Canerdian says:

    Maximum for non-commercial infringement
    Something to remember here is that the CMA limits non-commercial infringement to $5000 for *all* allegations in a given case. That’s not even worth a copyright troll’s legal fees.

    What you’re likely to get is an official-sounding copyright extortion letter full of intimidating legalese, but with no teeth. This is where Canada really got it right: they did not want to see barbaric situations like that poor mother in the US whose great grand-kids will probably be working off a $200K+ debt for downloading a whole 24 songs.

    Still, notice-and-notice reeks of corporate corruption and cronyism. They are exploiting the public’s naivety as part of their intimidation tactic.

  15. @Angry Canerdian
    “Something to remember here is that the CMA limits non-commercial infringement to $5000 for *all* allegations in a given case. That’s not even worth a copyright troll’s legal fees.”

    Coming directly from experience in the content industry, I guarantee you that those who would seek that, would gladly spend the money and take the losses to send a message to Canadians regarding their ideology around non-commercial infringement. It’s all about the message sent. It gets people talking about it. That message that non-commercial infringement is wrong is not backed up by empirical economic data. I strongly disagree with any penalty put on users considering the data. Notice to Notice is a form of political social engineering using mass surveillance. That’s a very dangerous place to be for Canadians on so many levels.

  16. Angry Canderdian says:

    @Jason K
    Fair point and I don’t disagree. We need some sort of well-publicized informational website, blog or something explaining the public’s rights and to preempt these extortion letters.

  17. @Angry Canderdian
    “We need some sort of well-publicized informational website, blog or something explaining the public’s rights and to preempt these extortion letters.”

    We have news media in this country. That would probably be the most preferred way of getting the word out. From what I hear Michael is fairly connected and respected in that regard. Perhaps when the time comes, he can help explain to the media and public what consumers rights under these circumstances. I think the onus is on him to explain, and also it would be the right thing for him to do under these circumstances.

  18. ..,.,,..,
    I’m guessing this notice & notice will come into effect before Christmas or the beginning of 2014. Good thing I don’t use torrents it’s for amateurs.

  19. Notice and Notice
    What I don’t understand is they can already go after people who download and upload when the copyright bill came into effect,only company to do anything was Voltage pictures so far but what says when the notice and notices comes into effect it will get any worse for us when since they already can go after us?

  20. @Jacob
    Voltages case is going to take a while to resolve. I think that any decision that’s made on that case at this point, is still far off from being dealt with. In the mean time with an expected decision by the courts on Voltage to get Teksavvy to hand over customers information, the content industry is pushing hard on Government to implement notice to notice, so they have maximum exposure for their social engineering from any very near future Voltage decision.

    Meaning once/if Teksavvy is ordered by the courts to release customers information, the flood gates are about to be opened huge for the content industry. I like to think of those in the content industry who are against non-commercial infringement as terrorists. They wait for the most opportune moment to strike in order to get maximum exposure. At this point in time, it doesn’t matter if Voltage wins or loses in court at a later date, if any customers information is handed out the content lobby will launch it’s offensive. By the time the voltage case is done and a final, so will be the content industries social engineering. By then millions would have been affected.

    That’s why it’s important due to the scale of all of this that people know what and where their rights lie, Michael currently is in a prime position to approach main stream media to ensure the population at large knows what their rights are under these circumstances. Rather than some people actually leading from in front, they’ve lead from behind while playing with peoples rights. I don’t agree with that approach. As a result we’re dealing with the prospect here of mass social engineering, and a lot of innocent people being caught up in this until it’s been dealt with fully in the courts.

  21. @ Jason K
    You make it sound like all hell will break loose scaring the people.. as I see it not much will change. Americans are still doing fine and strong in downloading & uploading stuff, I don’t hear about anyone getting charged anymore for downloading just a lot of stupid letters people get and they just ignore them.

  22. @Hanz
    “Americans are still doing fine and strong in downloading & uploading stuff, I don’t hear about anyone getting charged anymore for downloading just a lot of stupid letters people get and they just ignore them.”

    A lot of innocent people (who don’t even download) are getting hauled into court by these automated capture systems used for the notices in the US. There’s a ton of examples of that. A lot of people are paying off these notices as well rather than fight. Then there’s the six strikes law. Damage caps are in place here in Canada, but it’s the legal costs that are not.

    Not one consumer group supported the notice to notice approach in the 2009 consultations from what I remember. It’s viewed as anti-consumer by most still. For the first time I’ve ever seen in my lifetime, consumers and creators were speaking together in the 2009 consultations. I don’t remember very many supporting this or any other enforcement measure.

    We now have this in place as some of university lab experiment on how best to defeat the content lobby through the courts, while putting a lot of innocent people at risk in the process, when all one had to do was recognize the consensus in the consultation forums in 2009, back that consensus up with data and change political ideology surrounding enforcement. The reason why it wasn’t, was because a lot of politicians were looking at Michael’s approach as one that garnered the most support from consumers. They gave him what he wanted, because they were afraid of him and the backlash they would receive off of anything he didn’t support.

    What happened as a result is that the conversations in the consultation forums got muted. Not one party is at fault for that, and in the coming months I hope that Michael and several others will join to ensure that consumers and content creators voices are heard independent of such filters and consulted directly on matters of public interest. But now we’re all stuck with this. Harper can change the law at will even if Voltage loses, and from the sounds of this post is signalling he has every intention to. It falls on those that created this mess to clean it up.

  23. @Hanz
    The reason why I know all of this as well is because I headed up a chapter of fair copyright for Canada. At the time Micheal pulled out his support for the notice to notice approach, I was busy trying to communicate with committee members, my own MP which is Peter Van Loan, and several MPs suggesting stating that no all of his Fair Copyright for Canada movement agreed with this approach.

    I got a very interesting e-mail back from Justin Trudeau at the time wanting to learn more about the consumer side to all of this outside of Micheal’s position. At the time Trudeau stated that it was important that he learn about such things, as an MP.

    The rest of the responses I got back from committee members and such were trying to find something to attack Micheal on rather than concerned about what consumers where interested in. I was trying to bring this up to Micheal before he threw me under the bus for kicking out an well known copyright troll out of my chapter who didn’t even reside within my chapters jurisdiction.

  24. Stupid Copyright laws
    I think we need to get a younger government in place that actually knows what technology is and not some old person that thinks they know. IF this was the case We could then say, Hey Movie/music industry Grow up and learn technology and use it correctly instead of wasting your money on lawyers suing the people that pay your bills.

  25. Petition
    Too late to make a petition, can we still win this fight?

  26. @Unkown
    Interestingly offside of the younger government statement, that was basically the message sent by the public and creators during the consultations. Instead we got a mix of government not caring about that voice and others who thought they knew better and undermined the message.

  27. Rogers
    I’ve read that people have already have been getting copyright letters from Rogers a few months ago and even has late as 2010 but how’s that possible when it hasn’t even came into effect yet?

  28. Personally I think the only way to break out a win for consumers here is if the ISPs do something in this consultation process that’s decisive around users privacy rights. I’d be very surprised to see that happen considering ISPs have a vested financial interest in this. I would live to be proven wrong on that in this current consultation process.

    We had the momentum in 2009, consumers were already petitioned on this approach in the consultations. From what I saw it was widely and already rejected. It would be very hard to get that momentum back. It would require collaboration of all stakeholders and a massive media advertising campaign within a very short time frame. Almost impossible for consumers to deal a good sucker punch to this. Its going to have to cone from the ISOs directly.

  29. Soory meant its going to have to come from the ISPs directly.

  30. Over the next two years the best we can hope for is that the Harper gang does not make things worse by adopting something like the TPP.

    I can’t say that I’ve thought much about notice-and-notice, but it can lead to some interesting questions. I’m personally concerned with texts in the later stages of copyright life where tracking authors’ heirs is near impossible. If an allegedly infringing text has been on a site for more than six months does the doctrine of laches apply? Is the ISP required to notify anybody?

  31. Notice and Notice is a win
    Wake up folks! Notice and notice is a win for the public. There is no ISP monitoring, no disclosure of personal information, no takedown of any content, no treatment of ISPs as judges, no cutting off Internet service, and no additional costs to consumers. It’s a notice with no legal consequences unless the copyright holder decides to do something more (which they could do with or without this system). This has been used for about ten years now with no big adverse consequences. The copyright lobby hates it because they wanted a takedown system, a three-strikes and you’re out rule or something with legal penalties. This is a big win for consumers and its funny that some on this blog don’t seem to get it.

  32. @Wake Up
    As an academic theory that might be acceptable, however that comes from someone on the outside looking in. It’s not 1999 anymore it’s 2013. A lot has changed. It’s impossible to tell now what’s illegal and what’s legitimate business on the P2P networks. There’s also a huge shift with respect to digital distribution in the content industries in which the big ISPs in Canada have a stake in. They are also content producers, and already have inhibited online distribution through online caps, and the use of throttling over the years. Don’t think for a second people will not start getting notices on mass. At this time consumers should not be steered away from any distribution channel online. The content industry is still trying to figure stuff out internally, that really has nothing to do with consumers and shouldn’t in my view.

    To elaborate; A large number of content producers especially in video are looking at P2P as a market for advertising right now. A lot of embedded ads are starting to appear in a lot of P2P content recorded from mainstream over the past year or so. A lot of content producers are pretty much expecting their works to be shared online now and are gearing advertising in that direction. The same technology used to automatically capture and log your IP from the P2P networks, can also be used to determine return on investment for advertisements, and investors.

    A lot of legitimate business is being done in industry through P2P. I know because I helped facilitate some of the legitimate adaptation to P2P back in 2007 when content creators and distributors started experimenting with it. There’s now data that shows industry intentionally leaking material on to these networks to hype up legitimate sales. That was something that back in 2007 we saw in industry as well. Manipulating sales through legitimate “illegal” leaks is now down to a fine art in 2013. It creates hype, and press you get from these “illegal” leaks. It makes people want to download it to check it out because it’s “illegal” and “bad”. You see this tactic used almost all the time now in the gaming industry where it’s more visible and obvious on big titles, and most recently from movie/music executives at the expense of threatening, suing, jailing internet users.

    In almost 20 years you can’t expect the content industry to not adapt and use P2P to their own advantage. There’s still a lot of rogue elements the content industry who won’t change because of what happened in 1999 when everyone was downloading and not buying content. It’s not 1999 anymore and shouldn’t be up to anyone in 2013 where Canadians get their content from online. As a producer you should be more concerned about how many people are actually listening and watching rather than suing or threatening people for return on investment. Think of it this way, would it be fair to threaten listeners of radio a notice because they decided to listen to free content? An industry was built around free content and radio. It’s an essential part of the industry. An industry has been built around file sharing, and it too is an essential part of industry now. If we put in laws that inhibit the use of P2P then we risk losing a huge amount of jobs. A lot of new legitimate jobs have been created as a result of P2P which more than offset the jobs lost in the old industry. That needs to be recognized politically at this point in order to have an explosion of innovation very badly needed to thrust this new media industry forward and kill off the rogue elements.

  33. @JasonK
    Great background on changes in the industry. Unfortunately, it has nothing to do with notice-and-notice. If copyright owners don’t want to send notices because P2P is part of their business model, no one is forcing them to. The law just legalizes a system that is already in place that comes without disclosure of personal information, kicking people off the net, or taking down content.

  34. @Wake Up
    The notice to notice approach that we’re talking about hasn’t been in place. If it was there would be no consultations on the implementation of it, nor the costs associated with “implementing” this approach. It would have already been “implemented”. They are setting up for an automated notice system to “deter” infringement. Anyone thinking things are going to be the same as in the past 10 years needs to “Wake Up”. Plus what exactly is going to be in these notices? A link to empirical economic data showing that non-commercial infringement is actually helping the industry? I think this is being used as more of a stepping stone to get the automated system in place to eventually disclose personal information and kick people off of the net to be honest. Bait and switch. It’s still a very negative approach for consumers.

  35. @Wake Up
    Even Michael is starting to clue in here:

    The notice to notice approach has the potential also to be used as a front for other surveillance activities. In large part, that’s why a lot of consumer groups didn’t support notice to notice to begin with. Even from the 2009 consultations, there’s been a lot of developments in industry around the conversation around copyright, and also with government, but if you still wish to go to bat for this approach I respect it, but I have always been fundamentally against it and I have a feeling in the months ahead, those looking at the situation on the consumer end will be taking up great exception to it.

  36. @JasonK
    Do you have any clue what you are talking about? The notice-and-notice system has been in place on an informal basis for ten years. Canadians get these notifications all the time. The ISPs currently forward those notices on a best-efforts basis. With the law, it will now be mandatory. The notices just describe an alleged infringement, stating the work in question and the time of the infringement. There are no legal risks to consumers, no disclosure of their personal information, no loss of access, no legal liability, and nothing taken down. That’s called a win for the public.

  37. @Wake Up
    You said: “It’s a notice with no legal consequences unless the copyright holder decides to do something more (which they could do with or without this system).”

    Now you’re stating: “There are no legal risks to consumers”


    “Canadians get these notifications all the time.” -> I especially find this interesting. I haven’t seen any notifications coming from any ISP to a Canadian consumer nor have heard of any notifications been sent at all over the past 10 years. From working in the content industry myself, I know of many content creators who have contacted Canadian ISPs to send notices with no reply that even a notice was sent.

    Again not one consumer group I am aware of called for the notice to notice approach. It’s not a win for the public, it’s a win for the ISPs who will be charging fee’s and making money off this system. As Canadians start to get these get these notifications all the time in the near future, as that reality sets in, I’m sure that the consumer backlash on this approach will be very visible, and a large portion of that is because their voices were not accurately heard in the consultations. It’s a system that is indefensible as a result. The Canadian public didn’t ask for this, and clearly didn’t want it in the consultations. The only win that can come out of it, is when their voices are heard over everyone else by their elected officials. That didn’t happen in 2009!

  38. @Wake Up
    Also in keeping the theme of transparency to the public on this issue of notice to notice, I think a great idea would be to make the ISPs publicly disclose the costing of this approach on their end to MPs and to the public since this is an “enforcement” matter of public policy. An example of the notices to be sent, regular yearly audits to ensure costs associated with this are not passed on to the consumer, and how many notices are sent to the public as a result of this system. I think that will bring out some transparency and public accountability around on this system, that maybe needed under these circumstances.

    There are 3 parties that have yet to earn public trust around public policy surrounding copyright, the telecom sector, content creators, and the government. I have a hard time believing all three are in such goodwill towards the consumer on this issue. Each of these parties has a history of acting out against consumers interests.

  39. Nailed it, sir!
    @ Austin Williamson
    I can only add a number #5. Destroy any logs.

  40. This plan is not good for anonymity
    Artists should make art for the benefit of all of humanity, not for their own benefit, and certainly not for the benefit of the advertising cartels. And information should flow freely and anonymously on the Internet. It should never be owned. And we should preserve anonymity.

    Without anonymity, the soul of the Internet will dry up. Anonymity is the lifeblood of curiosity and creativity and innovation, Snowden noted. The opposite of anonymity is vanity. Real generosity, real romance, and real forgiveness must be anonymous. Just ask any of the member of AA or NA etc. about the power of anonymity.

    This is a firm step toward the outlaw of anonymity, as it normalizes a walled-garden mentality about what should constitute “the Internet” with respect to the current seeming ability to “log it all”. It negates the reality that “an IP address is not a Person”. It poses a major obstacle to the proliferation of free WiFi which benefit libraries and other public spaces. It is a threat to privacy, and ultimately to democracy and diplomacy.

    They already have an expedited extra-judicial domain seizure regime. They have Copyright Agents installed in major social networks. They have automated search engine removal capabilities. We can forsee these corporations wanting to extend this to any public access point, to VPNs and TOR exit nodes. They’ll look in backdoors for hidden channels to find IP addresses to harvest. They’ll want to look for infringement not just on Limewire and Google, but also in the datacentres of the NSA.

    These are not the ravings of a paranoid man. This plan is simply a firm step in the wrong direction.

  41. Are there any details of what the notice to the consumer actually says? Does it involve a series of escalating warnings if the person doing the supposed infringing continues their activities?

  42. SO are they going to send these notices to hydro companies after all with out power there would be no online piracy. I look forward to local pirate clubs exchanging multi TB HDD and USB drives. It will be like the good old days when you would receive cd’s in the mail from a buddy who loaded them up with Photoshop 3/4, 3DMax, Lightwave etc… Those were exciting times. Hell I remember being sent Illustrator 3 or 4 on 40 floppy’s then had to use a re-splicing program to but the files together into one.

    Better yet have a mesh/wifi network between your neighbors where everyone hosts some file to share.