Take Note: a primer on the Notice and Notice regime

A “Consider This” piece.

Notice the Notice About Noticing
Image courtesy of Toronto Realty Blog

A rude awakening

You are checking your email first thing one morning, as you do every morning, and you find in your inbox a message with a subject line that says something like “Notice of Copyright Infringement.” How did such a message find its way into your inbox, and what does it mean? You may have just felt the reach of Canada’s “Notice and Notice regime”!

How the regime works

There are organizations that monitor internet traffic on behalf of copyright owners. These organizations are searching for unauthorized online sharing of certain movies, music, books, and so forth. When one of these organizations identifies an instance of such online sharing (uploading or downloading), they note the date and time, the specific content involved and the IP address, and they send that information in a “notice of unauthorized use” to the internet service provider (ISP) that oversees that particular IP address. In many cases, the ISP will be able to use internal data on its internet traffic, along with the information in the notice, to identify the specific user account. When such an identification can be made, the ISP is required by law to forward the notice to that user. The ISP must then inform the originator of the notice that the notice has been forwarded to the user, but the ISP does not identify the user to the originator. The law requires that ISPs retain data related to their traffic for a specified time period to aid in identifying users, but ISPs only release the specific information that might identify a user in cases where legal action has been initiated.

This is the “Notice and Notice regime”:

a) The copyright owner’s representative identifies alleged unauthorized use or sharing of one of their works;

b) That representative sends a notice detailing this unauthorized activity to the associated ISP; and

c) The ISP must forward that notice to the user, in cases where a specific user account can be identified.

How the University gets involved

For internet activity that takes place over a University-operated network, the law treats the University like it would treat Telus or Shaw or any other ISP. Therefore, when unauthorized use originates from someone using the U of A‘s internet service, and the U of A receives a notice about that unauthorized use, the U of A must forward that notice to the associated user.

What it means if you receive a notice

The notice itself does not mean a legal action has been or will be commenced. Essentially, when the notice is originated and then forwarded to you, it means only that some questionable internet traffic relating to a certain copyright-protected work has been detected, and that the traffic-monitoring data of the ISP points to your account. The fact that you have received a notice does not, in itself, mean that you are guilty of any wrongdoing.

The notice will normally offer a method for you to pay a settlement to cover the unauthorized downloading or file sharing. However, if you receive such a notice, you are under no obligation to respond. Furthermore, while the originator of the notice does not know your identity as the user who has received the notice, if you do choose to respond directly to the notice, then the originator will likely be able to determine who you are.

If you ignore the notice, it is possible that the copyright owner will choose to pursue legal action for the unauthorized use. However, initiating legal action is expensive whereas sending out notices to elicit quick settlements is cheap.

It is also important to note that there is little to ensure that all originators of notices are acting in good faith. Given that generating notices is relatively inexpensive, it is certainly possible for notices to be generated simply in hope of generating a small percentage of settlement responses.

The point behind all this

But wait just a sec! If you don’t have to respond to the notice and can simply ignore it, then what’s the point? In some ways, the Notice and Notice regime can be viewed as a warning system. It puts users on notice that their online activity can be monitored and that acts of piracy might have consequences.

The bottom line

Needless to say, the University does not encourage or condone the illegal uploading or downloading of copyrighted material; however, it must be acknowledged that the technology available to each of us now does make it very easy to infringe copyright if we choose to. Then again, it is also increasingly easy to find legitimate online sources of works that can be viewed or used for a reasonable fee. It is up to each of us to make responsible choices around how we use copyright-protected material.

The copyright system works best if each of us acts responsibly in considering not only our own interests as users or consumers of material but also the reasonable interests of creators in receiving their due. Each of us acting to support that balance will truly serve the public interest.

Additional information

The Government of Canada’s information about the Notice and Notice regime is available here.

For more information about copyright at the University of Alberta, check out the Copyright Office website, or email our help desk at copyright@ualberta.ca.

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Adrian Sheppard — Director, Copyright Office

Adrian has been the Director of the University of Alberta’s Copyright Office since April 2015. One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright. Adrian has an LL.B. from the University of Victoria.

Note: This post is intended to provide information and perspective about copyright issues, but should not be considered as legal advice.