On January 1, 2015 the “Notice and Notice” system was implemented under the Copyright Act. So-called because upon suspecting infringement on the Internet, the copyright holder gives notice to the Internet Service Provider (“ISP”) then the ISP passes notice to the suspected end user, the registered Internet account holder. Notice and Notice is supposed to protect both parties’ interests. The copyright holder has an opportunity to curtail infringement by providing notice to possible innocent or inadvertent infringers where there is a potential claim to be raised for copyright infringement. At the same time, the end user is not unduly deprived of access to legitimate material by having it removed under the guise of copyright protection without the benefit of some legal test being applied.
Over the past several months, many of these Notice letters have been sent to Internet users and the severe tone of the letters has caused many recipients to contact local lawyers seeking advice. Statutory damages of up to $5,000 for infringement are clearly stated in the Copyright Act (at s. 41.26 for personal use) so the real question is when does it become clear that there has been infringement?
Liability under the Copyright Act follows intent. So downloading, streaming or torrenting may be
allowable if the user is dealing with copyrighted material they or the source provider have the rights to deal with. For example, backing up a copy of copyrighted material you already have the rights to or making a copy of a work for use on multiple devices is allowable, but only for personal use, not for commercial gain or to share with others; even for free. Therefore, only commercial operations which have negotiated license agreements with copyright owners are able to provide copyrighted material to others.
Per Copyright Act s. 29.23, storing a copyrighted work for later consumption is fine as long as the work was legally obtained e.g. not by circumventing technological protection measures, commonly called “digital locks.” The line is distinct and easy to understand for most: knowingly searching out an unlicensed file and downloading it is infringement. Streaming through a reputable site like Netflix or CBC, which have licenses for all the material available on their sites, is not.
New services, such as the currently free Popcorn Time, blur this distinction – in large part because of how the technology works. Popcorn Time is a torrenting service that acts and looks like the many other new streaming services now available for subscription in Canada. When accessing a torrent file, the end user is connected with multiple others who have the file already available and small portions are downloaded from each. The key difference with Popcorn Time is that the file is not stored on your device longer than the software is open. The fact that it is not saved, combined with uncertainty over which of the multiple sources of the file were infringing sources, and which were not, lead many users to conclude they are not infringing copyright. This is seldom the case. As mentioned above, typically only commercial licensees will have the right to supply copyrighted material to others.
This is only one of many circumvention techniques commonly used today. The industry has changed rapidly in the past decade with increased options and the speed with which consumers may access copyrighted materials. But greater copyright protection will come in the form of more and better options for individuals to consume copyrighted material in a convenient and timely manner.