Cease and Desist FAQ - Canada
From LawDepot Law Library
What is a Cease and Desist Letter?
A Cease and Desist Letter is a letter that requests that an individual or organization stop a specified action and refrain from doing it in the future, with a threat of legal action if the recipient fails to comply. Anyone can send a Cease and Desist Letter.
A Cease and Desist Letter is different than a Cease and Desist Order, which is an order given by a judge to stop an illegal activity.
What is the “Debt Collection” letter used for?
The Debt Collection letter is used to stop Debt Collectors from inappropriately harassing you.
What is the “Copyright Infringement” letter used for?
The Copyright Infringement letter is used to demand that an individual or organization cease infringing on intellectual rights of your copyrighted work.
What is the “General” letter used for?
The General letter is used to demand that an individual or organization ceases an action or behavior. The General letter can be used to demand the cessation of the following:
- Property, boundary and neighborhood disputes.
The General letter can also be used for cases of debt collection or copyright infringement. However, the Copyright Infringement and Debt Collection letters are more specifically suited for those purposes.
Should I keep a copy of the letter for my own records?
Yes, you should retain a copy of the Cease and Desist Letter in case further legal action is required and the recipient of the letter attempts to deny having received it.
What method of delivery should I use?
To ensure that the Cease and Desist Letter is received, you should use certified or registered mail where possible. Where speed of delivery is more important than cost and the party is in the same geographical area, you can also use a process server (they will provide an affidavit of service or its equivalent upon delivery).
What is copyright infringement?
Copyright infringement is a violation of the rights granted to the holder of a copyright.
A copyright holder has the following exclusive rights:
- To produce and sell copies of the original work.
- To create derivative works (works based on the original).
- To display or perform the work publicly.
- To sell or assign the above rights to others.
When individuals or organizations do any of the above without the permission of the copyright holder, they are committing copyright infringement.
What are fair use and unfair use?
Fair use refers to the Fair use doctrine, which allows individuals or organizations to use limited amounts of a copyrighted work without first seeking permission from the rights holder(s). There is no science behind determining fair or unfair use. However, the following are guidelines:
- The more directly the new work copies from the original, the more likely it is to be considered unfair use.
- The more artistic or creative the original was, the more likely it is to be considered unfair use.
- If the original was a factual account, the less likely it is to be considered unfair use.
- The more the original is used in the new work, the more likely it is to be considered unfair use.
- The less the original is changed in the new work, the more likely it is to be considered unfair use.
- If the new work is intended for commercial purposes, as opposed to educational or nonprofit purposes, it is more likely to be considered unfair use.
- If the new work could hurt the financial viability of the original, it is more likely to be considered unfair use.
Who should I send a Copyright Infringement Cease and Desist Letter to?
You should send a copy of your Copyright Infringement Cease and Desist Letter to the person or organization that is using your copyrighted material and your attorney, if you have one. And don’t forget to keep a copy (or several) of your Cease and Desist Letter for yourself.