Law Times

LAW TIMES 4 COVERING ONTARIO'S LEGAL SCENE | APRIL 29, 2019 www.lawtimesnews.com BY SHANNON K ARI For Law Times THE federal government set out new rules last December on what copyright holders can say in notices that Internet Ser- vice Providers must forward to subscribers accused of infringe- ments through online down- loading. The amendments to the Copyright Act were supposed to provide clarity in the "notice and notice" regime for rights holders and ISPs. But the provisions do not provide for any government oversight or potential sanctions against rights holders that send out notices with prohibited de- mands. "It appears that there is a gap in the law," says Catherine Lovrics, a partner at Bereskin & Parr LLP in Toronto, who heads the firm's Copyright & Digital Media group. "The ISP is supposed to be a neutral third party," she ex- plains, and is not responsible for ensuring the notices comply with the new rules. The new provisions outline what is not permitted to be in- cluded in a notice that is for- warded to a subscriber. It cannot include offers to settle "the claimed infringe- ment," requests or demands for payment or personal informa- tion or hyperlinks for the cus- tomer to click on to identify themselves. Law Times has obtained a notice alleging copyright in- fringement that was sent recent- ly to an Ontario subscriber of a Halifax-based telecommunica- tions company. The notice, which says it is from Digital Millennium For- ensics on behalf of a Canadian film distribution company, al- leges that, in addition to it being a copyright infringement, it is "illegal and is subject to crimin- al and civil sanctions." The notice suggests that legal action is possible unless the sub- scriber agrees to settle the claim and it provides a hyperlink to start this process. It also states that all hard drives or any stor- age device associated with the IP address must be preserved as a result of receiving this notice. A Vancouver address listed for Digital Millennium Foren- sics in the notice is a work-shar- ing location. The phone number for the business was not answered and it did not respond to an email from Law Times seeking com- ment. The notice sent to the ISP subscriber includes an intro- ductory section written by the ISP, which states what a rights holder is not permitted to re- quest. However, that is followed by the content that includes the de- mands. ISPs are not required to forward invalid notices, but a spokesperson for the ISP says that is not always possible. "The federally regulated no- tice and notice regime has re- sulted in ISPs receiving millions of such notices a year, which presents significant challenges for operators to filter," says the spokeswoman. "While we are compliant with the federal government's legislation, we have and contin- ue to provide clear communica- tion to our customers that these specific types of notices are not valid." Demands for a financial settlement were not uncommon before the changes were made to the Copyright Act. It is not clear how widespread they still are. A spokeswoman for the fed- eral Office of Consumer Af- fairs, which is part of Innova- tion, Science and Economic Development Canada, says it is "closely monitoring" the imple- mentation of the new rules. Recipients of these notices "would understandably be con- cerned," says Lovrics, although she agrees that piracy remains a significant issue for rights hold- ers. She adds that lawyers in this area are awaiting court rulings in ongoing cases in Canada referred to as "reverse class ac- tions," where a rights holder is seeking relatively small amounts of damages from a number of defendants in the same proceeding. When the federal govern- ment engaged in its review of the Copyright Act last year, a coalition representing the country's major ISPs welcomed changes to the notice and notice regime. "We supported setting out what is not allowed," says Jay Kerr-Wilson, who represented the Business Coalition for Bal- anced Copyright. The organization warned, however, that the changes did not include any deterrent to try to stop the practice. "We would like there to be a requirement for a standard notice. "It could be done through a 'web form' with the rights holder filling in the fields," says Kerr-Wilson, a partner and co- leader of the technology, media and telecommunications group at Fasken Martineau DuMoulin LLP in Ottawa. Changes to notices are to ensure they are used properly, he explains, not about reducing options for companies whose rights have been infringed. "Rights holders can still go to court. Notice and notice was never meant to be a litigation tool. It was always meant to be about warning subscribers and as an education tool," he adds. LT 'It appears that there is a gap in the law' New federal rules on what notices can say The ISP is supposed to be a neutral third party. Catherine Lovrics NEWS © 2019 Thomson Reuters Canada Limited TR713399-NK Do you know the practical effects of legalized cannabis in Canada? Rely on our trusted content for answers. Our one-stop resource centre features new cannabis-related publications that are available to help you navigate the complexities of Canada's new cannabis law. New Publication Cannabis in the Workplace John R. Gilmore Order # L7798-8680-65203 $155 Softcover February 2018 approx. 160 pages 978-0-7798-8680-7 Multiple copy discounts available New Publication Cannabis Law Bruce A. MacFarlane, Q.C., Robert J. Frater, Q.C., and Croft Michaelson, Q.C. Order # L7798-8820-65203 $150 Softcover November 2018 approx. 300 pages 978-0-7798-8820-7 Multiple copy discounts available New Publication Cannabis Law: The Legislative Framework 2019 Bruce A. MacFarlane, Q.C., Robert J. Frater, Q.C., and Croft Michaelson, Q.C. Order # L7798-8917-65203 $145 Softcover November 2019 approx. 800 pages 978-0-7798-8917-4 Annual volumes supplied on standing order subscription New Publication Législation sur le cannabis Lois et règlements Order # L89730-453-65203 $35 Softcover October 2018 approx. 560 pages 978-2-89730-453-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 W ith the bencher election nearing completion on April 30, there has been a rich amount of online commentary about the need for the legal profession to participate in the voting process. #BencherElection2019 candidate John Nunziata f loated an interesting idea: What if CPD credit was given for taking part? Tweets surfacing in different discussions touched on the idea of CPD credit or the suggestion that more lawyers and paralegals needed to take part, regardless of poten- tial incentives. Some of those weighing in also shared a healthy dose of hu- mour, with some hockey references slipping in. The new bench- ers are anticipated to be announced in early May. LT Should CPD credit be given for voting? Demands for a financial settlement were not uncommon before changes were made to the Copyright Act. © Pressmaster / Shutterstock

• Cover