Practical guide to Notice and Notice
Notice-and-notice is the name for the regime put into place by sections 41.25 and 41.26 of the Copyright Act. These rules require digital network providers (like ISPs and VPNs) to forward notices sent by copyright owners to internet users whose network identification (Internet Protocol address) may have infringed copyright.
The Notice and Notice regime
Sections 41.25 and 41.26 of the Copyright Act outline the rules whereby digital network providers (like ISPs and VPNs) must forward notices sent by copyright owners to internet users whose network identification (Internet Protocol address) may have infringed copyright.
To comply with this "notice and notice" regime, the notices must identify:
- the alleged infringement (unauthorized access to copyrighted content)
- the copyrighted material (movie, television show, book, video game, etc.) the alleged infringement relates to
- the copyright owner’s name (usually a production company like HBO, Warner Bros., etc.), address, and their right with respect to the copyrighted material
- the Internet Protocol (IP) address, and the date and time of the alleged infringement
The University of Manitoba is the digital network provider to internet users (staff, students and other authorized users) on campus. Internet users at the university have an identification (UM Net ID) that may be cross-referenced with an assigned IP address.
When the university receives a notice, we must do two things:
- forward the notice to the internet user who allegedly infringed copyright and provide a success or failure receipt; and
- keep information that can be used to determine the user’s identity for six months.
If the copyright owner commences court proceedings, we may need to retain the information for more than six months.
The role of the university in notice of claimed infringement
The university does not monitor users to send notices. We have no involvement in collecting the IP addresses presented in a notice of claimed infringement; this is done independently by the copyright owner, and so we are in no position to speculate on the validity of a claim.
The university's role in the notice and notice regime is solely to send the notice to the user and retain records. The university has no knowledge of the accuracy of any notice you receive, nor of what you do on the internet. So far, we have sent out hundreds of notices to hundreds of users.
We cannot know what further steps its sender will take, if any. What we can tell you is that receiving a notice does not mean there has been a legal ruling. Only a court can determine whether there has been copyright infringement and what the consequences may be.
Your account security
It is good practice to ensure your account is secure. You can do this by:
- changing your password regularly
- using virus protection on any device you use to access your account
Keep track of who has access to your account. The university does not permit sharing accounts, and each user is responsible for all activity on their own account.
If you have shared your username and password with someone else, change your password as soon as possible.
Main source of notice of claimed infringement
Internet users are often confused when they receive a notice and may not fully understand why.
In most cases the user has accessed a torrent client, app or program, which allows users to download and share content that may infringe copyright. Some of these apps have adopted user friendly designs that look like legitimate services such as Netflix or CraveTV, but they are not.
Ensure that any clients, apps or programs you use offer legal access to copyright protected content. Question the legitimacy of clients, apps or programs that offer free access to content you would normally need to purchase.
Be wary of websites, apps or services that charge a fee for faster downloads of free content: paying a fee does not make it legal if the content you are downloading is copyright infringing.
Torrent apps, programs and clients may also continue operating in the background on your device even when you are not actively using them. Consider deleting or disabling any torrent apps or programs on your device.
Repeat notices and next steps
As per the terms of the university’s Use of Computer Facilities Policy and Procedures, if we suspect that you are frequently or consistently violating copyright, you may receive an email asking you to acknowledge your academic integrity and internet use obligations. Failure to reply may result in your internet access being suspended.
Students found to have violated the Use of Computer Facilities Policy and Procedures or the Use of Copyright Protected Materials Policy can have their computer and internet privileges revoked, face fines and have disciplinary matters reported to their dean.
Settlement offers and what you should know
Many notices, especially those relating to pornographic material, request payment of a settlement and claim that if downloaders do not pay they will be sued for huge sums of money. Commentators on the subject consider this a form of extortion by “copyright trolls”; the university takes no position as to the legal legitimacy of a settlement offer.
Remember: If you do not reply to the rights holder who sent the notice, they have no way of identifying you without a court order, and you cannot be sued if you are not identified.
International student concerns
The university will not take drastic disciplinary action against students, and Canadian law does not seek expulsion or deportation in these types of cases. However, students are expected to comply with the law and university policies when using university Internet facilities and services.
Forwarding fees for copyright owners
The Copyright Act grants the Minister of Industry the ability to determine the fee that can be charged for forwarding notices, sending back receipts and preserving data.
At this time, the Minister has not fixed a fee, so the university cannot charge one. As a result, there is no cost for a copyright owner to create an automated system to send notices. The Minister may change this in the future.
Privacy and users' personal information
Protection of personal information
Subscriber information, individually-issued Internet Protocol addresses and the link between them are all personal information. We forward the notice, based on a database lookup as to which user was associated with the relevant IP address at the relevant time. We do not provide any information about you back to the sender.
We will not provide your personal information to any copyright owner unless we are ordered to do so by a court. We will take every opportunity to make sure that our users receive notice if we are ever asked by a court to disclose their personal information.
IP address logs
The internet is federated by a common system for Internet Protocol addresses coordinated by the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN has designated the American Registry for Internet Numbers (ARIN) to assign certain ranges of IP addresses which are used by the University of Manitoba.
The university, in turn, allows the use of IP addresses by student and staff accounts that connect to our network so the associated device can access the internet through UM. These addresses are generally assigned dynamically. The typical university IP address is therefore assigned to different accounts at different times.
IP address logs keep track of these assignments. They are automatically generated by our routing and authentication equipment. They are very large text files generated at high volume. In order to meet its legal obligations, the university now exports most of its IP address logs daily to a database system. The raw logs are then purged to make room for more.
Storage of IP address logs
Log information varies. The wireless network management software keeps six to eight weeks’ worth of data. The network authentication system has logs that go back several years. The emails regarding notices that we pass along will be purged with a six-month rolling window.
In isolated cases, we are required to extract certain information from our systems in order to preserve it for longer than 30 days. In some instances, we are required to do this by a court order in a criminal case. However, the most common reason for a longer preservation period is to comply with the Copyright Act.
Since January 2, 2015, we have been required to forward notices of claimed copyright infringement to UM account information that matches the IP address and timestamp indicated on the notice. When we do so, we are also required to retain that IP-address-to-user correlation information, and the associated user’s identity, for six months. If the copyright owner who sent the notice commences court proceedings, we may be required to retain it for more than six months.
We can currently look up IP address information with reasonable accuracy going back several years. False negatives occur in around five per cent of cases. False positives are highly unlikely. Having this data has been diagnostically useful to the university in the past.
Request for personal information
If we ever become aware of any legal proceeding which may require us to disclose your personal information to a third party, the university will notify you by email and provide as much information as possible about the legal proceeding under which the request was made.
The university will notify affected users if we receive a court order compelling us to disclose their personal information unless explicitly prohibited from doing so by law.
Copyright infringement and legal advice
The university’s role after a notice is forwarded
The university’s role is to ensure that we fulfill our legal and ethical obligations. We must comply with the Copyright Act. We remind our users of our policies regarding use of the internet. We must also make sure our users’ privacy interests are fully respected.
Our users must know what personal information we are preserving, for how long, and why. We must ensure no information is disclosed to any copyright owner without a court order. If things progress further and the copyright owner goes to court seeking such an order, we must take every opportunity to make sure the user is aware of this as soon as possible, so that there is an opportunity to address the court before any disclosure is ordered.
When a disclosure is ordered, takes place and the rights holder wishes to pursue a copyright infringement claim, you will receive a notification from the rights holder. Upon receiving this notification, the issue will be between you and the rights holder.
No legal advice
For the university, as an intermediary, it’s difficult for us to answer many of the questions raised by notices of claimed infringement. We are not in a position to advise any third party on the application of the law to their particular situation, or the actions that they should take in response to a notice of claimed infringement, a motion for disclosure, or the defense of potential claims that may be made against you.
You can consult an attorney of your choosing, or contact the Community Legal Education Association’s Law Phone-In and Lawyer Referral Program.
Canadian copyright infringement penalties
U.S. copyright fines and penalties do not apply in Canada. However, the copyright owner may take legal action under Canadian copyright law.
Copyright owners can sue infringers for the damages they have suffered due to the infringement and the profits the infringer has made. However, they also have the option of electing statutory damages (a set amount in the Copyright Act) at any time prior to final judgment, even if they cannot demonstrate their damages or prove an infringer’s profits.
If the infringement was for non-commercial purposes, statutory damages are between $100 and $5,000. If it was for commercial purposes, statutory damages are between $500 and $20,000.