January 13, 2017 2:40 pm
Updated: January 13, 2017 2:53 pm

No, you do not have to pay a ‘settlement fee’ if you get an illegal download notice

Here's what you need to know if you received a copyright infringement notice.

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New regulations surrounding illegal downloading went into effect in Canada two years ago. But the number of warning notices being issued to internet subscribers is still growing.

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Canadians confused by the so-called “notice and notice regime” warnings often take to social media sites with questions like, “Do I have to pay a settlement fee for copyright infringement?” or “Am I being sued?”

READ MORE: New regulations about illegal downloading go into effect

These letters are sent by Internet Service Providers (ISPs), like Rogers and Bell, to customers whose IP address is believed to be connected to illegal downloading.

The emails usually read something like this: “[Your ISP] has received what the Copyright Act calls a “notice of claimed infringement”. It listed an IP address and time. Our systems indicate that the IP address listed in the notice was likely assigned to your account at the specified time.”

READ MORE: Internet users receive illegal downloading notices, but what do they mean?

The ISP may also forward the original notice from the copyright holder – such as a movie studio, or media company – but this is where it gets tricky.

Sometimes these notices encourage the customer to pay a settlement fee for the alleged copyright infringement.

According to user reports on sites like Reddit, these alleged fees can range anywhere from $200 to $10,000.

Are you obligated to pay these fines?

The answer is no.

“There is no legal obligation to pay any settlement offered by a copyright owner,” Industry Canada confirmed to Global News.

So why does this keep happening?

According to industry experts, these notices continue to cause alarm with unsuspecting Canadians thanks to so-called “copyright trolls” who misuse the notice and notice regime.

“The ‘notice and notice’ regime, which started out as a measured and effective made-in-Canada mechanism to reduce infringement, is being misused by some players to convey inappropriate settlement demands to uninformed consumers and scaring them into unnecessary payments,” said Howard Knopf, copyright expert and lawyer at Macera & Jarzyna LLP in Ottawa.

Bram Abramson, chief legal and regulatory officer for internet service provider TekSavvy, told Global News that some media companies have started “copyright trolling,” using programs to monitor peer-to-peer downloading sites for their own copyrighted content and generating copyright infringement reports automatically.

“Once these programs are set up they churn out as many as they like – it’s all automated,” said Abramson.

READ MORE: Canadians who illegally download movies may be risking more than previously thought

Global News asked Industry Canada and the major internet service providers including Bell, Rogers, Shaw and TekSavvy, how many notices it sent out over the last year under the notice and notice regime.

Industry Canada directed us to internet service providers, noting participants in the program are under “no obligation” to tell the government how many notices it issued.

Bell and Rogers both declined to comment on how many infringement notices they’ve received from copyright holders. Shaw did not respond to requests for comment.

Abramson could not provide exact data from TekSavvy; however, he estimated the company sends ‘thousands’ of notices per year.

David Christopher – communications manager at OpenMedia, an advocacy group that focuses on privacy and open internet in Canada – pointed out that many of these messages sent by copyright holders often use American wording, citing U.S. copyright laws.

“There are companies that base their whole business model off of finding people who are allegedly downloading material and go after them on behalf of media companies,” said Christopher

“They send out as many threatening emails as possible.”

What you need to know if you receive one of these emails

It’s important to note that without a court order the alleged copyright owner has no way of determining the identity behind the IP address it has flagged.

Your internet provider does not hand over any personally identifying information to the copyright holder and the notices you receive directly from them are only intended to ask you to stop illegally downloading.

Legal experts say it’s imperative that you do not respond to emails from alleged copyright holders, otherwise you may identify yourself and risk potential legal action.

 “Anyone who responds to a settlement demand, or makes contact in any way with the sender, is very likely going to reveal their identity,” Knopf added.

Additionally, just because you receive a notice of alleged infringement, does not mean you are guilty.

“If an individual receives a notice of alleged infringement, it is because a copyright owner has identified their Internet address as being involved in an activity that allegedly infringes their copyright,” said a spokesperson for Industry Canada.

“Receiving a notice does not necessarily mean that they have in fact infringed copyright.”

READ MORE: Canadians among top illegal downloaders of ‘Game of Thrones’

Meanwhile, experts are calling on the government to help prevent abuse of the notice and notice regime by asking that ISPs and third parties explain to users in their notices that they are under no legal obligation to pay settlement fees.

In 2015, several internet advocacy groups – including the Canadian Internet Policy and Public Interest Clinic and OpenMedia – sent a letter for James Moore, Ministry of Industry, calling for these changes to be implemented into Canada’s Copyright Act.

Some organizations are already doing this. The University of Manitoba, for example, explains in its notice that U.S. copyright fines and penalties do not apply in Canada and that statutory damages for non-commercial infringement in Canada does not exceed $5,000.

“If the integrity and utility of the notice and notice regime is to be sustainable, the Government must proceed as soon as possible to implement regulations preventing the inclusion of settlement demands in such notices and relieving ISPs of any obligation to pass improper notices along to the intended recipients,” said Knopf.

© 2017 Global News, a division of Corus Entertainment Inc.

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