Will “Notice and Notice” Survive? Re-examining Internet Intermediaries’ Liability for Copyright Infringement in Canada

(uniquement en anglais)

par Joudy Sarraj

I. INTRODUCTION

As Internet intermediaries facilitate access to a large and growing volume of online content including copyright-protected content,¹ governments,² civil society,³ and scholars⁴ are keen to clarify intermediaries’ liability for copyright infringement. The EU has removed “online content-sharing service providers” (OCSSPs) from safe harbour protection, requiring OCSSPs to obtain licenses for materials uploaded by their users. The EU has also effectively introduced a “notice and stay down” regime, requiring platforms to ensure that specific content will not re-appear on their sites at a rightsholder’s request. The extent of an intermediary’s liability is important because it determines its corollary enforcement obligations, for example: the EU Copyright Directive’s “notice and stay down,”⁵ the US Digital Millennium Copyright Act’s (DMCA) “notice and takedown”⁶ and Canada’s “notice and notice” provisions.⁷

This paper probes the viability of Canada’s notice and notice regime and asks whether it will endure amidst rising global intermediary liability standards. It employs a comparative lens, identifying benefits and drawbacks of Canadian, US, and EU copyright enforcement approaches, to help policymakers ensure Canada’s framework for Internet intermediaries keeps pace with an evolving digital world.⁸

The analysis is divided into four sections. The first provides a detailed overview of intermediaries’ liability and related enforcement obligations in each jurisdiction. The second analyzes the legal implications of automated infringement monitoring technology. The third section examines the risk of transitioning away from notice and notice to more stringent enforcement from the perspective of copyright user rights. Finally, the last section touches on copyright economics and investigates which enforcement system meaningfully renumerates creators or addresses the so-called “value gap.”

II. OVERVIEW OF LEGAL REGIMES

A. Canada

Section 3(1) of the Copyright Act grants copyright holders a range of exclusive rights, including the ability to “communicate work to the public by telecommunication.”⁹ Anyone exercising such right without the copyright owner’s permission is liable for infringement.¹⁰ However, section 2.4(1)(b) exempts platforms “providing the means of telecommunication necessary” from liability. Furthermore, the Act provides explicit exemptions for specific types of Internet intermediaries, including network services like Internet service providers (ISPs),¹¹ and caching services.¹² Storage services like cloud providers are not liable when their digital memory is used to store copyright-infringing materials,¹³ unless they have material knowledge of the subject-matter, brought to their attention through a court decision or injunction.¹⁴ The Act also covers information location tools like Google’s search engine.¹⁵ This statutory protection is void if the platform’s primary purpose or true function is to facilitate copyright infringement.¹⁶ The law considers factors such as operators’ knowledge that the service is used for copyright infringement,¹⁷ and ability to limit acts of infringement.¹⁸

The Society of Composers, Authors and Music Publishers of Canada v Canadian Assn. of Internet Providers (SOCAN) decision provided the first comprehensive interpretation of these provisions. The Supreme Court confirmed that s 2.4(1)(b) applies to any intermediary effectively acting as a “conduit” or playing a “content neutral” role in the dissemination of copyright protected materials.¹⁹ Justice Binnie noted the “continued expansion and development” of Internet infrastructure is “vital to national economic growth” and hence worthy of protection.²⁰ However, the decision also predicted that intermediaries may attract liability in circumstances where they act as content providers. In this sense, “the protection provided by s 2.4(1)(b) relates to a protected function, not to all of the activities of a particular intermediary.”²¹ Take for example, Bell Canada which acts as an ISP, in addition to running Crave, an online content streaming service like Netflix.

The court’s reasoning in SOCAN was based on the basic idea of not “shooting the messenger.” It cited an 1891 case proposing that it would be unfair to hold a telephone company liable for the nature of a message transmitted through its wires to which it was utterly ignorant.²² Despite reiterating that mere conduits should not be liable for copyright infringement, the majority actually contemplated platforms removing infringing material via takedown notices in accordance with the Canadian Association of Internet Providers Code of Conduct at the time. The court even held that in certain circumstances, “if the host server provider does not comply with notice, it may be held to have authorized communication of the copyright material.”²³

SOCAN pre-dated the notice and notice regime, which was introduced eight years later through the Copyright Modernization Act.²⁴ Despite SOCAN’s early discussion of potential notice and takedown in the Canadian context, the notice and notice regime which now applies as law provides that intermediaries have no prima facie obligation to remove content from the Internet. In essence, notice and notice stipulates that a  rightsholder may send a notice of claimed infringement to a service provider,²⁵ who is then simply obligated to forward the notice electronically to the alleged infringer to inform them of the claim.²⁶ The remainder of the relevant legislative provisions regarding notice and notice are largely technical and set out the form and content of notice.²⁷ During consultations for the Copyright Modernization Act, telecommunications companies suggested notice and notice would codify long-standing industry practice. They claimed that industry providers had been forwarding millions of copyright infringement notices to subscribers at their own expense for years.²⁸

The first meaningful judicial interpretation of the notice and notice regime followed in 2018, in Rogers Communications Inc. v Voltage Pictures, LLC. Writing for the majority, Justice Brown determined that notice and notice was enacted to: (1) deter online copyright infringement; and (2) balance the rights of interested parties. On the first point, notice and notice was never contemplated as a “silver bullet” or comprehensive framework for enforcement.²⁹ Instead, notice and notice is a first step in a process by which rights holders can vindicate their rights – most notably, by going to court and obtaining an injunction or takedown order.³⁰ Notice and notice is an instrument towards this end. For instance, s 41.26(1)(b), fixes ISPs with an obligation to retain records to allow the infringer’s identity to be determined sometime after notice is received so that the copyright owner can sue the person identified.

On the second objective, the Supreme Court expressed that interested parties include Internet intermediaries. Justice Brown explained that notice and notice should “clarify Internet service providers’ liability” to copyright owners.”³¹ Namely, in addition to attracting liability for enabling copyright infringement,³² an intermediary might now attract liability for failing to satisfy its statutory obligations under the notice and notice regime. However, in practice, notice and notice offers little concrete clarification of the liability standards applicable in the area of greatest contention: OCSSPs, those intermediaries who are not explicitly mentioned in the Copyright Act, and whose function may expand beyond content-neutrality as predicted by SOCAN. YouTube, for instance, plays a role in categorizing content by genre and style, creating recommended playlists and providing “auto-play” or “auto-complete” functions in addition to hosting content and providing a search engine.³³ Netflix and Crave work similarly, although they give users less freedom to upload original content, interface with audiovisual materials, and potentially engage in copyright infringement.

Scholars including Barry Sookman have grappled with the question of OCSSPs liability and corollary responsibility pursuant to the notice and notice regime.³⁴ There is no definitive answer on how Canadian law, properly construed, conceives of OCSSPs’ liability. The Government of Canada’s Consultation on a Modern Copyright Framework for Online Intermediaries suggests “clarifying the permitted involvement of qualifying intermediaries” for this reason.³⁵

Suffice it to say, Barry Sookman³⁶ and Michael Geist³⁷ have both looked to decisions of the Copyright Board for additional guidance on the liability of OCSSPs under Canadian copyright law. Namely, in 2014, the Copyright Board decided in favour of SOCAN in a dispute regarding the application of tariffs to music used in user-generated content (UGC) on sites like YouTube and Facebook.³⁸ Since the Copyright Board only has the authority to certify a tariff if there is a legal basis to do so, its decision to apply a tariff may indicate that OCSSP platforms communicate copyright-protected musical works to the public in the course of hosting UGC.³⁹ This conclusion may expand their role beyond mere conduits.

B. United States

In contrast to Canada’s notice and notice regime, Section 512 of the DMCA provides a positive duty to take down copyright protected content upon receipt of notice. Intermediaries receive safe harbor protection by complying with notice and takedown and by designating agents to manage and respond to notices and counter-notices. Upon notification of claimed infringement by a copyright owner, the platform must expeditiously remove or block access to the material that is the subject of the notice.⁴⁰

Much like the Copyright Act, the DMCA creates explicit safe harbours for certain types of intermediaries: “mere conduit” access providers, ISPs storing copyrighted information by caching, hosting services, and information location tools. ⁴¹ Although the legislation does not address the conundrum of OCSSP’s inclusion or exclusion, this question is addressed directly in landmark litigation like Viacom v YouTube, a case which affirmed the legal protection of OCSSPs for copyright liability so long as they comply with their notice and takedown obligations.⁴²

Viacom claimed YouTube was liable for the copyright-infringing activities of its users and sought more than $1 billion in damages. The Second Circuit Court of Appeals ruled that YouTube might be liable if it had exerted “substantial influence” over its users.⁴³ It sent the case back to be decided by a district court, whose final determination was deemed a “resounding win for YouTube” by civil society.⁴⁴ The district court seized on the fact that Viacom had failed to provide YouTube with notice regarding the 63,060 clips allegedly containing copyright infringement. The absence of notice was deemed absence of evidence of the platform’s knowledge of copyright infringement and hence its complicity in the actions of its users.⁴⁵ In the alternative, Viacom tried to assert that YouTube was obligated to prove its lack of knowledge. That argument failed because Viacom offered no legal basis to shift that burden of proof to YouTube.⁴⁶ YouTube’s transcoding of clips for viewing on mobile devices was found to be protected by the safe harbor provisions of the DMCA.⁴⁷

The reasoning in Viacom v YouTube differs greatly from Canadian judicial interpretations which suggest that notice of copyright infringement is not evidence of the platform’s knowledge of infringement, nor can it lead a court to the conclusion that the service provider authorized its users’ infringement. In Voltage Holdings, LLC v Doe #1, the Federal Court of Appeal refused to deem an internet subscriber liable for copyright infringement because the owner asserted infringement in a notice to the relevant ISP. The court ruled that mere association with an IP address is not conclusive of guilt.⁴⁸ If notice of copyright infringement does not accurately indicate whether there was infringement, then receipt of notice cannot indicate the intermediary’s constructive knowledge that their platform is being used for infringement.

Notwithstanding this recent judicial reasoning, the final report of the Consultation on a Modern Copyright Framework for Online Intermediaries signals policymakers’ interest in lowering the standard of knowledge required to render intermediaries liable for copyright infringement to constructive knowledge by notice. The report suggests “that actual knowledge could be deemed from receipt of a notice of claimed infringement.”⁴⁹ The idea that a platform could be deemed to know of infringement on its servers because it received notice as such from a copyright holder, inches closer to a notice and takedown approach whereby the platform would no doubt want to promptly remove the allegedly infringing material to avoid liability.

In addition to case law like Viacom v YouTube, a report by the Samuelson Law, Technology & Public Policy Clinic at Berkely Law firmly places OCSSPs under the DMCA’s safe harbour protection and points to the benefits of shielding OCSSPs from liability in the US. Namely, this protection encourages innovation and connects Internet uses to everything from user-generated content to Hollywood films. The system has led to an “explosion of Internet creativity occurring on platforms readily accessible to millions of users worldwide.”⁵⁰

On the other hand, the notice and takedown system with which OCSSP’s are required to comply to receive DMCA protection, has been criticized for undermining users’ presumption of innocence and unnecessarily limiting free expression.⁵¹ The right to respond is limited and the counter-notification procedure which is intended to police against overreaching or ill-considered complaints by allowing the target of a notice to contest the takedown, is underused and procedurally weak.⁵² Moreover, even when the target of a takedown notice sends a counter-notice, erroneously disabled material is likely to remain inaccessible for at least ten business days.⁵³ This lag between counter-notice and put-back has the potential to cause great harm for time-sensitive materials like news and political activism. Research indicates that notice and takedown has been used to stifle political speech globally including on social media sites.⁵⁴ The upshot of the UGC innovation and growth of OCSSPs spurred by safe harbour protection, is the fairness and free expression risks associated with the notice and takedown regime with which OCSSPs must comply to receive protection. Canadian policymakers should keep this trade-off in mind when considering lowering the threshold of constructive knowledge.

C. European Union

Prior to the introduction of “EU Directive 2019/790”, Article 14 of the European “E-Commerce Directive” provided safe harbour protection to Internet intermediaries generally,⁵⁵ and opted for an enforcement regime very similar to notice and take down.⁵⁶ Article 17 of the EU Directive does not erase these general protections, rather it introduces a new copyright liability regime for “online content-sharing service providers” specifically. An OCSSPs is defined as:

“The provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users which it organizes and promotes for profit-making purposes.”⁵⁷

The enactment of Article 17 was arguably spurred by proponents of the “value gap” argument, which suggests that OCSSPs like YouTube and Dailymotion gain ad-revenue from user-uploaded material which they should obtain a license for.⁵⁸ The value gap will be addressed briefly in the last section of the paper. However, it is relevant in so far as the text of Article 17 deems that OCSSPs communicate copyright materials to the public and are thus required to obtain the appropriate collective licenses from copyright holders.⁵⁹

Not only does Article 17 subject OCSSPs to liability for material unlawfully uploaded by users, but the language of the provision transforms the EU’s enforcement regime with respect to OCSSPs to “notice and stay down.”⁶⁰ Once notice of infringement is received, the OCSSP is obligated to, “in accordance with high industry standards of professional diligence,” make the works which the rightsholder has identified “unavailable.”⁶¹ In essence, OCSSPs must not only disable access to the specific content once notified by the rightsholder; they must take measures to prevent future uploads. This provision has raised concerns about the use of automated technologies as the “high industry essentially refers to technological monitoring measures.⁶²

Anne-Marie Birdy is highly critical of Article 17, and suggests the rule is the result of concerted lobbying efforts by the music industry.⁶³ She points to inconsistencies between the new provision and well-established EU caselaw including the Sabam v Netlog decision, which not only firmly placed OCSSPs in the realm of safe harbour protection, but also urged that online platforms “cannot be obliged to install a general filtering system… in order to prevent the unlawful use of musical and audio-visual work.”⁶⁴ Despite the fact that Netlog, an online social media site, had at least some functionality in common with YouTube, the European Court of Justice did not discuss Netlog’s architecture in any detail, nor did it suggest that its unique functionalities as an OCSSP would have any meaningful impact on its treatment as an intermediary providing the infrastructure of online communication to the public.⁶⁵ Although Article 17(8) stipulates that the new provisions “shall not lead to any general monitoring obligation,” experts are still concerned that for risk-averse online media platforms, general monitoring will inevitably follow.⁶⁶

Finally, note, in some limited circumstances, even where OCSSPs have no license for certain material, they are not deemed in breach of the copyright holder’s exclusive rights. An OCSSP is exempt from liability where it makes “best efforts to obtain an authorisation.”⁶⁷ This provision is understood by Axel Metzger and Martin Senftleben as an interim measure shielding an OCSSP from liability while it seeks to negotiate and obtain a license.⁶⁸

III. AUTOMATED MONITORING OF COPYRIGHT INFRINGEMENT

Although the text of the EU Directive explicitly states no general monitoring obligation is imposed on OCSSPs, many commentators believe compliance with Article 17’s “best effort” and “high industry standards” obligation to prevent the re-appearance of certain material will lead to a general monitoring obligation. Before Article 17 is implemented by national legislatures, and interpreted by courts, “it seems difficult to imagine how OCSSPs can discharge their obligations differently than by installing filtering and monitoring systems that would be considered general in nature.”⁶⁹ Anne-Marie Birdy suggests that Article 17 imposes de facto technical measures in so far OCSSPs are charged with creating a reference file for any content that is the subject of a notice, and then screening all subsequent uploads to prevent that content from reappearing.⁷⁰ Arguably, the neutral language deployed in the text, can hardly disguise the fact that all parties involved in the legislative process had filtering technologies in mind when the provision was drafted, most obviously the Content ID technology used by YouTube and Google.⁷¹

The DMCA does not contain an express general monitoring requirement for Internet intermediaries. The district court in Viacom v YouTube also confirmed that while “YouTube can readily locate infringements by using its own identification tools… it has no duty to do so.”⁷² Still, scholars including Martin Husovec suggest that algorithmic copyright enforcement is ‘inevitable in practice’. Husovec notes the concerns of prominent artists and filmmakers who “spend their time not making movies, but sending out 50,000 take down notices in a vain attempt to sweep aside the tide of recurrent copyright infringement.”⁷³ Interestingly, Husovec advocates that under some conditions, algorithmic enforcement is socially desirable. Whereas algorithmic infringement technologies can result in false-positives, manual notice and takedown also results in over-blocking and the stifling of expression.

Nonetheless, there is reason to be concerned about automated copyright enforcement. Take for example, the role of AI-generated notices. On April 4th, 2024, journalist Kevin Purdy shared a blog post detailing his experience receiving a fake DMCA threat from an entirely fabricated, AI-generated law firm, “Commonwealth Legal” a firm theoretically based in Arizona with a Canadian IP location.⁷⁴ Whatever the reason for the bogus take-down notice, the rise of AI no doubt creates additional uncertainties for Internet users inundated by a new source of illegitimate notices.

What impact might the increasing use of automated copyright enforcement tools – whether legally required per Article 17 in the EU, or technologically inevitable per practice in the US – have on Canada’s notice and notice enforcement regime? Recall the absence of explicit protection for OCSSPs in the Copyright Act, lack of judicial guidance, and administrative direction suggesting that social media sites like YouTube are excluded from safe harbour protection. The increasing prominence of automated enforcement likewise supports the conclusion that OCSSPs are subject to liability; that they are more than mere conduits of copyrighted works.

Section 27(2.4)(d) of the Copyright Act states: “In determining whether a person has infringed copyright under subsection (2.3), the court may consider… the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so.” According to this section, a person providing a service can limit acts of copyright infringement as part of their service. Any actions taken by this person to prevent infringement effectively determines whether they endorse infringement on their platform. In 2004, the court in SOCAN recognized: “Given the vast amount of information posted, it is impractical in the present state of the technology to require the host server provider to review all information on its servers and monitor compliance.”⁷⁵ The ability of platforms to engage is different today, twenty years later. Re-visiting the Copyright Act in light of increased technological capacities indicates that OCSSPs may indeed be liable for copyright infringement on their platforms as a result of their enhanced monitoring ability.

IV. COPYRIGHT USER RIGHTS

Article 17(7) of the EU Directive provides that it “shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright,” or in other words, it shall not stifle fair dealing. The EU copyright system requires that member states protect secondary uses of copyrighted material: quotation, criticism, review, caricature, parody, and pastiche. Once again however, the problem with Article 17’s fair use-protective provisions are that they may be difficult to implement in practice, given the technical limitations of monitoring technologies that are incapable of identifying public domain content or applying context-dependent limitations and exceptions.⁷⁶

Critics of Article 17 and its notice and stay down provisions again refer to Sabam v Netlog, where the European Court of Justice decided that hosting providers cannot be required to install systems that monitor or filter information to avoid all present and future infringements because the expenses incurred by such an obligation would result in an infringement of the freedom of the provider to conduct its business. It would require complicated and costly technical infrastructure.⁷⁷

While Canadian law does not recognize a right to conduct business, the UGC exception, as well as rich fair dealing exceptions expressed in the seminal CCH Canadian Ltd. v Law Society of Upper Canada decision, raise similar concerns in this context. Artists and creators seldom operate in isolation; they draw on the work of their predecessors or metaphorically stand on the shoulders of giants. Copying, sharing, re-making, and re-mixing, activities taking place online, are integral to twenty-first-century communication.⁷⁸ In recognition of this new reality, Canada enacted s 29.21 of the Copyright Act, becoming the first country in the world to make user-generated content an exception to copyright infringement. The UGC exception allows a person to use copyright-protected works to create new content for non-commercial purposes.

However, a noted flaw in the exception is that it conflates amateur creation with non-commercial use. Amateur UGC is becoming more sophisticated and may have indirect commercial benefits. This is precisely where the “value gap” argument stems from. UGC on YouTube for instance, may earn its creator and the Internet platform commercial benefit through ad-revenue. Nevertheless, the UGC exception and others ought to be interpreted considering CCH, in which the Supreme Court provided a broad and generous reading of copyright user rights. It clarified that fair dealing exception is an integral part of the Copyright Act, rather than simply a defence. Any act falling within the fair dealing exception will not be considered an infringement of copyright.⁷⁹ The articulation of fair dealing as a user right represents a shift, emphasizing the need for a balance between the rights of creators and the rights of users.  It supports the position that moving towards a notice and takedown, or notice and stay down system, where OCSSPs are inclined or obligated to constantly monitor and enforce against copyright infringements would not create an environment conducive to fulsome copyright user rights. Even UGC with ad-revenue might be fair dealing considering its purpose, character, amount, alternatives, nature, and effect. Additionally, UGC which has disabled ad-revenue no doubt fits firmly within the UGC exception.

Although some witnesses to the recent “Copyright Act Statutory Review Report”, including the Canadian Bar Association (CBA), suggest replacing the notice and notice regime with a notice and takedown regime, such a shift in policy would be contrary to Canada’s broadly conceived copyright user rights.⁸⁰ It might also conflict with the public’s interest in judicial review and court oversight before material is removed from the Internet. For example, the Canadian Radio-television and Telecommunications Commission (CRTC), considered an initiative where it would combat piracy by making recommendations to ISPs about suspicious websites that ought to be blocked.⁸¹ The CRTC received thousands of complaints and interventions and the proposal ultimately failed. It was criticized for giving the CRTC, an administrative body, too much and control over take down decisions. Empowering copyright holders to send take down notices and make these decisions at will, represents an even more stark departure from the public’s interest in court review of take down order.

Shifting towards a notice and take down model would be ill-advised given the important perspective of copyright user rights in Canada. It would disturb copyright law’s internal coherence. In addition to the risk of over-blocking by automated technologies, risk-averse and profit-interested OCSSPs are not likely to undertake comprehensive fair dealing studies before deciding to remove content upon receiving a notification of claimed infringement. For example, The Electronic Frontier Foundation maintains a “Takedown Hall of Shame” where it displays examples of flawed or even malicious takedowns in the US. In one example, YouTube advocated for its decision to take down a clip of a lecture about copyright law moderated by a Vanderbilt Law professor, which featured music experts from opposite sides of the “Blurred Lines” case, where the estate of Marvin Gaye claimed Robin Thicke and Pharrell’s song infringed “Got to Give It Up.”⁸² The video was flagged by YouTube’s Content ID system and taken down. It provides a good example of how technologically driven monitoring systems can fail to recognize cases which fit firmly within the fair dealing exception, and how these flawed determinations can be re-enforced by human decision makers.

V. ADRESSING THE “VALUE GAP” ARGUMENT

The “Copyright Act Statutory Review Report” accepts the position that safe harbour provisions in the Copyright Act (ss 31.1 and 41.27), have the consequence of “a massive reallocation of economic value from copyright owners to ad-supported online platforms.”⁸³ Music Canada proposed that the hosting services exception should only be available to technical, automated, and passive intermediaries with no knowledge of alleged infringements.⁸⁴ The Canadian Musical Reproduction Rights Agency (CMRRA) and the Canadian Music Publishers Association (CMuPA) proposed amending section 31.1(4) of the Act to clarify that the exception is not available to a “content provider,” i.e., a service playing “any active role in the communication to the public of” copyrighted content.⁸⁵

Respectfully, these suggestions are redundant re-statements of existing legislative provisions, or the court’s interpretation of them in SOCAN. The heart of the value gap argument which remains unanswered is the appropriate copyright enforcement mechanism. For instance, some witnesses argued that safe harbour provisions available to online service providers should be conditional on the implementation of effective anti-infringement policies. The Canadian Media Producers Association, argued that an OSP should not benefit from a safe harbour when it has “knowledge that their systems are being used for infringing purposes, but take no steps to stop it.”⁸⁶ What should such anti-infringement policies look like?

As discussed, enforcement options range from notice and stay down, to Canada’s largely discretionary notice and notice regime. The appropriate enforcement regime will depend on which option strikes a balance “between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”⁸⁷ Copyright law is about achieving this delicate balance according to the Supreme Court in Théberge v Galerie d’Art du Petit Champlain inc,.

On one hand, safe harbors exist to limit liability and provide certainty for online platforms that allow members of the public to create and share content. Protection from liability enables OCSSPs to give the public access to open online forums for creative expression and cultural participation. Safe harbours manage the operating risk inherent in hosting massive quantities of third-party content.⁸⁸

On the other hand, rightsholders claim they are not being properly renumerated from ad-revenues and failing to the reap the value of copyright-protected material uploaded by users onto online content sharing websites. Renumeration of rightsholders may follow if notice and takedown were implemented, because OCSSPs would be incentivized to pay for valuable licenses so they may continue to host online work. David Vaver suggests that “obtaining a just reward for the creator” is a practical economic consideration: it is about incentivizing media entrepreneurs to invest in production, distribution, and financing, and to safeguard their markets.⁸⁹ As such, copyright holder’s calculus is not only about getting paid for a particular work but improving their bargaining and negotiating position generally.

Ultimately, The Copyright Act Statutory Review Report recommends that the Government of Canada monitor the implementation, in other jurisdictions, of extended collective licensing as well as legislation making safe harbor exceptions available to online service providers conditional to measures taken against copyright infringement on their platforms.⁹⁰ It takes a wait and see approach.

VI. CONCLUSION

Canada's notice and notice regime asks copyright holders to notify online intermediaries of copyright infringement by their users. Upon receiving a notice, the provider must forward it to the user associated with the alleged infringement, informing them of the claim without disclosing their identity to the copyright holder. Internet intermediaries are protected from liability for infringements by their users so long as they comply with this regime. While the system aims to enforce copyright in a manner that fairly balances the interests of copyright owners, users, and intermediaries, it may lack teeth. The shortcomings of the regime’s discretionary nature are highlighted by the EU's move beyond notice and takedown to a notice and stay down system, where online intermediaries are responsible for ensuring that copyright-infringing materials do not reappear on their servers.

Automated infringement monitoring and content filters also challenge Canada’s notice and notice regime. The Copyright Act’s safe harbour protections for intermediaries are contingent on the platform not knowing of infringement, nor facilitating it through their service. These provisions read in light the prevalence of automated content monitoring technology, may exclude certain intermediaries, particularly OCSSPs, from safe harbour protection.

While the EU addresses the legal treatment of OCSSPs head-on through Article 17 of the 2019/790 Directive, and the US has confirmed ongoing safe harbour protections for OCSSPs through landmark litigation, the status of OCSSPs who play a role in organizing and managing content in Canada is unknown. There is no definitive answer on how Canadian law, properly construed, conceives of OCSSPs’ liability for online copyright infringement; whether service providers like YouTube are considered more than mere conduits of online communication.

Innovation, Science and Economic Development Canada’s, Consultation on a Modern Copyright Framework for Online Intermediaries actions suggestsclarifying intermediaries’ safe harbour protections against liability for copyright infringement, including how intermediaries’ knowledge of infringement and content-related activities will affect their liability as well as their attendant obligations. Once the liability of intermediaries like OCSSPs is clarified, such a framework must address whether notice and notice will survive, whether it remains tenable from the perspective of the Copyright Act’s internal coherence.

Any suggestion of abandoning notice and notice in favour of notice and takedown or notice and stay down, must consider that Canada’s copyright law regime maintains an emphasis on copyright user rights in addition to pioneering exceptions including the UGC exception. Debates regarding the “value gap” and the renumeration of rightsholders must balance the public’s interest in fair dealing and open expression and should be considered in such a process.

Internet intermediaries are increasingly aware of their roles in addressing unlawful speech and responding to growing demands for content moderation beyond copyright infringement.⁹¹ The federal government plans to introduce legislation imposing obligations on Internet platforms to remove unlawful speech and regulate content moderation. In this context, it is imperative that Internet intermediaries and particularly OCSSPs’ liabilities are clarified with respect to notice and notice of copyright infringement.

BIBLIOGRAPHY

LEGISLATION

Copyright Act, RSC 1985, c C-42.

Copyright Modernization Act, SC 2012, c 20.

Digital Millennium Copyright Act, 17 USC § 512.

EU, “Directive 2019/790 of European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC”, [2019] OJ, L 130/92.

EU, “Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’)”, [2000] OJ, L 178.

JURISPRUDENCE

CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13.

Rogers Communications Inc. v Voltage Pictures, LLC, 2018 SCC 38.

Sabam v Netlog, C-360/10, [2012], ECLI:EU:C:2012:85.

Salna v Voltage Pictures, LLC, 2021 FCA 176.

Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers, 2004 SCC 45.

Théberge v Galerie d’Art du Petit Champlain inc., 2002 SCC 34.

Viacom Intern., Inc. v YouTube, Inc., 676 F (3d) 19 (2nd Cir 2012).

Viacom Int’l Inc. v YouTube, Inc., 07 Civ 2103 (SDNY 2013)

Voltage Holdings, LLC v Doe #1, 2023 FCA 194.

ADMINISTRATIVE DECISIONS

SOCAN – Tariffs 22.D.1 – Internet – Online Audiovisual Services & 22.D.2 – Internet User-Generated Content, 2007-2013 (18 July 2018), online: Copyright Board.

SECONDARY MATERIALS: BOOKS

Sookman, Barry, Sookman: “Computer, Internet and Electronic Commerce Law” (Toronto: Thompson Reuters, 2023).

Vaver, David, “Intellectual Property Law” (Toronto: Irwin Law, 2011).

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Birdy, Anne-Marie, “The Price of Closing the “Value Gap”: How the Music Industry Hacked EU Copyright Reform” (2020) 22 Vand J Ent L & Prac 322.

Elkin-Koren et al, “Is it time to Abolish Safe Harbor? When Rhetoric Clouds Policy Goals” (2020) Stan L & Pol’y Rev 1 at 9.

Geiger, Christophe & Bernd Justin Jütte, “Platform Liability Under Art. 17 of the Copyright in the Digital Single Market Directive, Automated Filtering and Fundamental Rights: An Impossible Match” (2021) 70:6 GRUR International 517.

Husovec, Marin, “The Promises of Algorithmic Copyright Enforcement: Takedown or Staydown: Which Is Superior: And Why” (2018) 42:1 Colum J L & Arts 53.

Krokida, Zoi, “Deciphering article 17 of the digital copyright Directive and its compatibility with freedom of expression and information following Republic of Poland v European Parliament (C-401/19)” (2023) 48:3 EL Rev 348.

Metzger, Axel & Martin Senftleben, “Understanding Article 17 of the EU Directive on Copyright in the Digital Single Market – Central Features of the New Regulatory Approach to Online Content-Sharing Platforms” (2020) 67:3 J Copyright Soc’y USA 279.

Seltzer, Wendy, “Free Speech Unmoored in Copyright’s Safe Harbour: Chilling Effects of the DMCA on the First Amendment” (2010), 24 Harv J L & Tech 171.

Shikhiashvili, Lia, “The Same Problem, Different Outcome: Online Copyright Infringement and Intermediary Liability under US and EU Laws” (2019) 24:1 Intell Prop & Tech L J 125.

Silbey, Jessica, “We’re all Pirates Now: Making do in a Precarious IP Ecosystem” (2021) 39 Cardozo Arts & Ent LJ 691.

Solomu, Sonja et al, “Platform Responsibility and Regulation in Canada: Considerations on Transparency, Legislative Clarity, and Design” (2021) 34 Harvard J L & Tech 1.

SECONDARY MATERIALS: BLOGS

Berkely Technology Law Journal, “Canada’s Approach to Intermediary Liability for Copyright Infringement the Notice and Notice Procedure”, online (blog).

Geist, Michael, “SOCAN Seeks Millions from YouTube, Facebook, Netflix, Apple & Sony in Interim Online Music Tariff” (15 June 2011), online (blog).

Geist, Michael, “Why the CRTC should reject Fairplay’s dangerous website-blocking plan”, The Globe and Mail (1 February 2018), online (blog).

Purdy, Kevin, “Fake AI law firms are sending fake DMCA threats to generate fake SEO gains”, Arts Technica (4 April 2024), online (blog).

Sookman, Barry, “Fact checking Michael Geist’s criticism of the FairPlay site blocking proposal” (29 March 2018), online (blog).

Sookman, Barry “YouTube, Facebook, Netflix liable to pay for music in Canada rules Copyright Board” (21 July 2014), online (blog).

Szamel, Pio, “District Court Grants Summary Judgment to YouTube in Viacom v. YouTube (Again)”, JOLT Digest (2 May 2013) online (blog).

SECONDAY MATERIAL: REPORTS

House of Commons, Standing Committee on Industry, Science and Technology, “Statutory Review of the Copyright Act”, 42-1 (June 2019) online.

Innovation, Science and Economic Development Canada, “Consultation on a Modern Copyright Framework for Online Intermediaries” (Ottawa: ISEDC, 2021) online.

Radsch, C Courtney, “Weaponizing Privacy and Copyright Law for Censorship” (CIGI Papers No. 276)(Waterloo: Centre for International Governance Innovation, 2023) online.

Samuelson Law, Technology & Public Policy Clinic, “Updating 17 U.S.C. § 512’s Notice and Takedown Procedure for Innovators, Creators, and Consumers” (UC Berkely School of Law, 2011) online.

SECONDARY MATERIAL: OTHER

Electronic Frontier Foundation, “Automated Copyright Filter Can’t Detect Infringement or Irony”, online.

McSherry, Corynne, “Another Legal Victory for YouTube: When Will Viacom Wise Up and Walk Away?”, Electronic Frontier Foundation (18 April 2023), online.

Schmon, Christoph and Haley Pedersen, “Platform Liability Trends Around the Globe: Recent Noteworthy Developments”, Electronic Frontier Foundation (1 June 2022), online.

Endnotes