The Copyright Modernization Act, enacted 29 June 2012, inserted a new section 41 in the Copyright Act (R.S.C., 1985, c. C-42). Sections 41.25 and 41.26 provide for a “notice-and-notice” regime for both Internet access providers and hosting providers.
A copyright owner who detects an apparent infringement on the internet may send a notice (providing certain statutory particulars) to the service provider, who must then forward it to “the person to whom the electronic location identified by the location data specified in the notice belongs” – presumptively, the account holder. The ISP must inform the claimant of its action and retain the details for 6 months, or 1 year in case the claimant begins proceedings “relating to the claimed infringement”. This is presumably intended to allow the right holder sufficient time to bring appropriate proceedings for discovery against the ISP to obtain the name of the alleged wrongdoer. As Canada permits the use of “John Doe” actions, the right holder will be able to issue his proceedings and bring his discovery claim within those proceedings.
The ISP’s compliance with this procedure has no effect on its ability to rely on the exemptions from liability provided to ISPs under section 41.27. However, failure to carry out the duty may result in a liability for statutory damages of no less than $5,000 and no more than $10,000.
On 17 June 2014 the Government announced that it was about to bring these provisions into force with effect from January 2015, publishing a short ‘backgrounder‘ at the same time. The Government has decided not to issue any additional regulations, although empowered to do so under the Act. This has the effect that ISPs will not be able to charge for performing their duties under the section. On 9 May 2017, the Federal Court of Appeal confirmed that the statute has the effect of removing the presumptive entitlement of a defendant to a claim for discovery under the Norwich Pharmacal principle to be reimbursed for its costs of complying with the order to provide subscriber details. The only costs recoverable would be those of communicating the already-collected data to the right holder, likely to be a negligible amount: Voltage Pictures LLC & ors v John Doe 2017 FCA 97.