Supreme Court to rule on Rogers’ charges for infringer names and addresses

November 24, 2017

By Adam Bobker and Paul Blizzard 

Rogers Communications Inc. v. Voltage Pictures, LLC et al. [2017] SCCA No 278

The Supreme Court of Canada granted leave to appeal the Federal Court of Appeal decision in the Voltage case November 23, 2017.  This will be an important decision in the field of copyright enforcement on the internet, and the role that internet service providers will play in policing infringements.

Voltage Pictures, LLC v. John Doe, [2016] F.C.J. No. 901, 2016 FC 881 [Voltage FC].

(copied from Bereskin and Parr’s 2016 Copyright Year in Review)

Voltage Pictures selected a customer of Rogers (a Canadian ISP) as the representative defendant in a proposed “reverse” class action proceeding, alleging that the Defendant (and others like him/her) engaged in illegal file sharing, infringing the copyright of Voltage Pictures and other applicants. The Rogers Customer was identified only by IP address, and Voltage et al sought disclosure of the customer’s identity from Rogers.

The Federal Court, in Voltage Pictures, LLC v John Doe, 2016 FC 881, ordered Rogers disclose the contact information to Voltage et al. (a Norwich order). To balance privacy interests, however, the court also ordered that Voltage et al not make the identity of the unlucky individual known to the public in advance of it becoming part of the public record of the proceeding.

Voltage et al. attempted to ground their disclosure request in Canada’s recently implemented “notice-and-notice” regime under the Copyright Act, an approach that did not work. The Court found that the regime does not provide any detailed or comprehensive mechanism for copyright owners to enforce rights. The Court also found that, while ISPs are not permitted to levy a fee or seek compensation for forwarding a notice of claimed infringement, and retaining records, they may still seek the costs of complying with a disclosure order. The Court allowed Rogers’ request for $100/hr for disclosing the name and address of the relevant subscriber – over Voltage pictures objection that the amount was unreasonably high given that there could be no compensation for retaining the records identifying the subscriber.

Voltage Pictures, LLC v. John Doe, [2017] F.C.J. No. 477, 2017 FCA 97 [Voltage FCA].

Voltage Pictures appealed the decision of the Federal Court (FC) on the issue of the compliance costs of the disclosure order.  The FC had held that Rogers Communications was entitled to reasonable compensation in the form of a compliance fee of $100 per hour plus HST for preparing and disclosing customer information for the purposes of Voltage’s proposed class proceeding.

The “notice-and-notice” regime governing a copyright owner’s ability to give notice of internet infringements through a relevant internet service provider is in sections 41.25 and 41.26 of the Copyright Act[1].  Notwithstanding there have been no regulations entitling an ISP to any fee for providing such notice to an alleged infringer, the FC had allowed Rogers a fee of $100/hour to disclose the identity of an alleged infringer pursuant to the Norwich order.  The Court had allowed a fee to discharge their disclosure obligations to “assemble, verify and forward the Subscriber information”, stating “the fee is what it is”.

The Federal Court of Appeal (FCA) allowed Voltage’s appeal, observing that s.41.26(2) establishes a default position of “no fee” for the discharge of obligations under s. 41.26(1) to provide notice to infringers.  As the statute, the internet service provider cannot charge a fee for the costs of discharging its obligations under s. 41.26(1) absent a regulation by the Minister establishing a maximum fee.

The FCA held that the legislative regime of the Act required that copyright owners be able to protect and vindicate their rights quickly, easily and efficiently.  The purpose of the Act would be frustrated if s. 41.26(2) allowed ISPs to charge without restriction, or charge fees large enough to dissuade content owners from requesting the information required from ISPs to enforce their rights over the Internet. In the circumstances, the FCA agreed with Voltage that the FC erred in not assessing the reasonableness of the fee charged by Rogers pursuant to the Norwich order.

[1] Copyright Act, RSC 1985, c. C-42, ss 41.25 to 41.27 (added by the Copyright Modernization Act, SC 2012, c 20, s 47) [the Act].

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