On January 2, 2015, the "notice and notice" provisions of the 2012 Copyright Modernization Act came into force. This is good news to copyright holders, who can now contact alleged infringers by way of the Internet service provider (ISP) that is hosting the allegedly infringing material.
Under the new law, rights holders can send a notice to the ISP or web host of a website that contains material that infringes their copyright. Once the ISP receives this notice from the party claiming copyright, it then must forward the notice to the party that is allegedly infringing copyright. The copyright holder would then get a notice from the ISP confirming that the message was sent to the infringer - hence, the "notice and notice" moniker.
While copyright holders may be happy to have this additional method of protecting their rights, some are critical of this "made in Canada" approach. In the US, the "notice and takedown" approach takes things a step further - once an ISP or web host receives a notice of alleged infringement, it must take down or block access to the material "expeditiously." Copyright holders in the US are therefore arguably better able to protect their rights, since the material is typically removed from the website immediately after the notice. Others, however, have critiqued the US "notice and takedown" approach for going too far, and claim it results in the over-blocking or removals of non-infringing content.
Additionally, there are significant changes on the trademark registration horizon in Canada. Of particular note, it will soon be possible for Canadian brand owners to access an international system of trademark registration, extending to any of the 92 member countries under the Madrid Protocol. Further, applicants will no longer be required to show use in Canada in order to secure a trademark registration. Previously, a declaration of use in Canada was required in order to register a mark. It was possible for an applicant to register on the basis of proposed use, but applicants would still need to file a declaration confirming that it had actually started using the trademark. When these changes come into force, proof of use will no longer be required for registration. It remains to be seen whether dropping the use requirement will open the door for abusive registrations of marks, for example where the applicant has no intentions to actually use the mark in Canada. These changes, and others, are expected to come into force later in 2015 or early 2016. For more about these pending changes, click here.
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