Piracy in Canada: What the “Notice and Notice” Regime Allows

Many Canadian creators think that sending a notice is enough to make a pirated copy disappear. That is true in the United States. In Canada, the law works differently, and knowing it saves time spent on the wrong tool.

Here is what the Canadian regime provides, what it does not, and what gets results.

Two Regimes, Two Approaches

In the United States, the DMCA rests on the principle of notice and takedown: a platform that receives a valid notice removes the content, and in exchange keeps its protection against lawsuits.

AgencePDN gets pirated content removed: see our solutions by sector.

Canada chose another path, notice and notice. The regime is set out in sections 41.25 to 41.27 of the Copyright Act and has been in force since January 2, 2015. Its principle: the intermediary forwards your notice to the person concerned. It does not have to remove anything.

What the Internet Provider Must Do

When an internet service provider receives a valid notice, the law requires two things:

• forward the notice to the subscriber associated with the address in question, as soon as feasible;
• retain the records that identify that subscriber, for six months, or one year if legal proceedings are started.

If it fails to do so, the rights holder can claim statutory damages, set between $5,000 and $10,000.

The provider does not give you the subscriber's identity. To obtain it, you need a court order.

What the Notice Must Contain

To be valid, a notice must be in writing and state, among other things:

• the name and address of the person sending it;
• the work concerned;
• the right that person holds in the work;
• the electronic location in question, meaning the address where the copy is found or the IP address used;
• the alleged infringement, with its date and time.

What a Notice Can No Longer Contain

In the first years of the regime, some companies used it to send subscribers demands for payment, under threat of a lawsuit. Parliament put an end to this in December 2018.

Since then, a notice must contain no settlement offer, no demand for payment, no request for personal information, and no link to any such demand. An internet provider does not have to forward a notice that contains one.

The Limits of the Regime

The regime has a real effect: most people who receive a notice from their provider take it seriously. But it does not address three common situations.

• The content stays online. The notice informs; it removes nothing.
• It targets the user, not the site. The regime was designed for file sharing between individuals. A streaming site hosted abroad is not affected by a notice sent to a Canadian provider.
• It cannot keep pace with live events. For a game, a notice that arrives the next day is of no use.

What Actually Works

A Canadian rights holder has other levers, and they are the ones that make copies disappear.

Notices sent to the source. Most pirate sites, their hosts and the platforms where copies circulate are based outside Canada, and many respond to notices that comply with US law. A well-drafted notice, sent to the right recipient, gets the file removed. The recipient still has to be found: when a site hides behind a service such as Cloudflare, you have to trace it back to the real host.

Removal from search results. Google removes from its results the pages reported by the rights holder. We explain the process in our practical guide.

Blocking orders. The Federal Court can order internet providers to block pirate sites. It did so for the first time in 2019 in the GoldTV case, a decision upheld on appeal in 2021. Since 2022, it has also issued “dynamic” blocking orders for live sports: addresses that stream a game without authorization are blocked during the game. We come back to this in our article on hockey and pirate IPTV.

These orders require significant resources. They are mostly within reach of major broadcasters.

What to Do, in Practice

If you find a copy of your work:

1. Note the exact address of the page and take a dated screenshot.
2. Identify where the file is: on the site itself, or with a host it points to.
3. Send the notice to the source: to the site, then to its host if it does not answer.
4. Ask Google to remove the page concerned.
5. Come back and check. A removed link often reappears under another address.

For a few links, you can do it yourself. For a catalogue, it is a full-time job. It is the one AgencePDN has been doing since 2013, from Quebec: monitoring that searches for your titles every night, a check of each page, and takedown notices sent to the site, to its real host and to Google.

Our free scan gives you a first picture of your title's presence on pirate sites.

In Short

• Canada applies notice and notice, not notice and takedown.
• The internet provider forwards the notice to its subscriber and retains its records; it removes nothing.
• A notice cannot contain any demand for payment.
• To make a copy disappear, you have to go to the site, its host and Google.
• Blocking orders exist, but they remain a matter for major broadcasters.

This article presents the general framework and is not legal advice.