A second concern associated with the notice and notice approach in Bill C-61 is the absence of a penalty against claimants that file wrongful notices. This means that subscribers may receive completely erroneous notices regarding allegedly infringing content with no consequences to claimant. Section 41.25(2) includes considerable specificity about what should be included in a complainant notice:
- the notice must in writing (in the form prescribed by the government if it chooses to include one)
- state the claimant's name and address
- identify the work at issue
- state the claimant's right or interest to the copyright in the work
- identify the location data related to the claimed infringement
- state the infringement claimed along with the date and time of the alleged infringement
There is currently no fee associated with these notices, though the government may establish one by regulation. The absence of a penalty for false notices is a mistake that could open the process to abuse. While the government could intervene by establishing a notice fee (and thereby create a financial disincentive against wrongful notices), a better approach would be to create penalties for abusive notices.
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