Notice and Notice Regime Does Not Provide Legal Basis for Identifying Alleged Copyright Infringer

Justice Boswell’s decision in Voltage Pictures, LLC v. John Doe, 2016 FC 881, confirms that amendments to sections 41.25 and 41.26 of the Copyright Act in January 2015 did not alter the principles that apply to a party seeking a Norwich order to identify alleged infringers of Voltage’s copyright in several movies.  The amendments to the “notice and notice” regime only provide a mechanism for copyright owners to send a notice of claimed infringement through an Internet Service Provider to an alleged infringer and require the ISP to maintain records to identify the alleged infringer later, if necessary.

Justice Boswell’s decision arose on a motion by Voltage Pictures and others for an order compelling Rogers Communications to disclosure any and all contact information of a Rogers customer associated with a specific internet protocol address at particular dates and times. The motion was part of Voltage’s larger action which it intends to certify as a “reverse” class action for copyright infringement.  Voltage brought its motion for disclosure “in accordance with” ss. 41.25 and 41. 26 of the Copyright Act and sought an order that it was not responsible for any costs incurred by Rogers in providing the requested information. Rogers took no position on whether Voltage met the requirements for a disclosure order, but opposed the request to deny Rogers reasonable compensation and costs.

Justice Boswell granted an order for disclosure, but did not do so on the basis of Voltage’s request under the Copyright Act.  He also held that the Copyright Act did not operate to deny Rogers compensation for compliance with such an order. While the Copyright Act provides that the Minister may fix by Regulations the fee an ISP may charge for complying with the notice and notice regime, the Minister has not yet done so. Justice Boswell held that these provisions of the Act, which came into force in January 2015, did not clearly depart from the established law:

[11] The “notice and notice” regime does not provide any detailed or comprehensive mechanism for copyright owners such as the Applicants to enforce their rights as against alleged infringers. At best, it provides a mechanism for copyright owners to send a notice of claimed infringement via an ISP to an alleged infringer with the knowledge that there will be records available at some later date to determine the identity of such infringer if necessary… The fact that no regulation has been made to fix the maximum fee that an ISP may charge for performing these obligations speaks, not to whether no fee or compensation can be paid to comply with a disclosure order but, rather, to the current policy under the “notice and notice” regime that the costs of complying with these obligations is, at least for the time being, to be borne by the ISP.

[12] Contrary to the Applicants’ arguments, Parliament’s intention in enacting sections 41.25 and 41.26 was not one of “irresistible clearness” to abrogate and depart from established law and principles with respect to so-called Norwich disclosure orders emanating from the decision in Norwich Pharmacal Co. v. Customs & Excise Commissioners.

Justice Boswell held that Voltage had provided sufficient evidence to satisfy the requirements for a Norwich order under the current test set out in BMG Canada, and went on to find that disclosure by Rogers of only the subscriber’s name and address was necessary to ensure that privacy was invaded in the most minimal way.

Justice Boswell further found that Rogers fee of $100/hr to comply with its obligations under the notice and notice regime “is what it is” and if Voltage wants the requested information, it has to pay this hourly fee.

A copy of Justice Boswell’s Order and Reasons may be found here.