I’m sure you’ve never accessed material online without proper permissions from the copyright holder, but, given the number of them that go out, chances are you or someone you know (or their spam folder) has received an email along the following lines:
[Your ISP] has received a notice from a content owner that alleges an act
of copyright infringement from an Internet Protocol (IP) address assigned to you
at the time of the alleged infringement. We are required by law to let you know
that we have received this notice.
The law in question is the Notice and Notice scheme (ss 41.25 and 41.26 of the Copyright Act). The latter provision, s 41.26, outlines the steps that an ISP must take once it receives a notice of claimed infringement:
- The ISP forwards electronic notice to the person associated with the IP address alleged to be source of infringement.
- The ISP keeps records for six months that will allow one to determine who was associated with that IP address.
Now, while you may not realize it, there are entire systems in place to get that notice to you and to further produce your identity to the copyright holder (if the ISP is so ordered by a court). Like most things, getting that system in place and using it costs time and money, and since so many allegations of infringement go out each day (around 5,000 per day from Rogers alone), it turns out to be quite a bit of time and money indeed.[i] In the recent case of Rogers Communications Inc v Voltage Pictures, LLC, 2018 SCC 38 [Rogers], the Supreme Court of Canada helped clarify who exactly should foot the bill.
Parliament structured s 41.26 in such a way that ISPs could be reimbursed according to rules at the discretion of the Governor-in-Council. The Cabinet, as is its prerogative under s 41.26(2), decided not to entitle ISPs to any reimbursement for complying with the Notice and Notice regime. One is left, then, with the common law to fill any gaps (notably, actually producing the identity of the alleged infringer is done by Norwich application, not by statute).
In Rogers, Justice Brown, writing for eight justices, makes some key observations about this setup. Firstly, he refers to the legislative intent behind ss 41.25 and 41.26 of the .[ii] The background of the 2012 changes to the Copyright Act makes clear that Parliament intended to balance the interests of not only copyright owners and content users, but also of “Internet Intermediaries”.
Secondly, Justice Brown clarifies that the records that must be stored under s 41.26 refer to ones which would allow the ISP to determine who the alleged infringer is.[iii] It does not include the act of translating this information into a means which would be accessible and comprehendible to the copyright owner or the courts. It is this finding which opens the door for ISPs to claim expenses for complying with Norwich orders, separate from compliance with Notice and Notice.
However, according to Justice Brown, it would not be reasonable to reimburse the ISP for work it has already done under the Notice and Notice scheme.[iv] It is this final idea which appears to be the point of contention between Justices Brown and Côté.
Justice Côté agrees with the other justices that “any work required to determine an alleged infringer’s identity and disclose that identity … is not subsumed within the notice and notice regime.”[v] In practical terms, though, the process required to comply with a Norwich order moves beyond verifying pre-existing information obtained by the ISP under Notice and Notice. Instead, it requires ab initio excursions, on the part of the ISP, into figuring out the identity of the alleged infringer.[vi] This is especially the case given the possibility of information changing over the six-month period, and the fact that the statute only requires a ‘static’ record from the time at which notice was received.[vii]
Regardless of their differences, both sides agree that ss 41.25 and 41.26 are not so broad as to exclude the possibility of reasonable reimbursement for ISPs, in contrast to the Federal Court of Appeal. Indeed, both sides also concur in the ultimate result. That is, the matter was remitted to the motion judge for an adequate assessment of the reasonability of Rogers’ process and determination of reasonable costs (although one is sympathetic to Justice Bosworth in that, before the law was clarified on appeal, it wasn’t clear that any fee would have been reasonable, regardless of what process Rogers was using).[viii]
Beyond the reasoning, one is left with the feeling that something is missing from both opinions. The approach seems to be unquestionably one that treats ISPs as a distinctly third party to the issue of the Notice and Notice regime and Norwich orders. Is this really the case? After all, the very acronym stands for internet service provider. The third party in this case provides the alleged infringer access to content for a fee, and is able to pass along those costs to content users.
Is Rogers just about the entitlement of third parties to reasonable costs for complying with Norwich orders? Or might it fit with a broader common law principle that it is up to the holder of copyright to pursue the enforcement of that right? As pointed out in Rogers, the Government of Canada has seen fit to balance the rights of content users and copyright holders by having the third party bear the costs. But when faced with the reality that those costs can be passed on (one way or another) to content users, maybe the ruling in Rogers becomes much more about user rights than statutory interpretation.
Peter Werhun is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.
[i] Rogers Communications Inc v Voltage Pictures, LLC, 2018 SCC 38 at para 63.
[ii] Ibid. at para 25.
[iii] Ibid. at para 43
[iv] Ibid. at para 52.
[v] Ibid. at para 62.
[vi] Ibid. at paras 63-64.
[vii] Ibid. at para 68.
[viii] Ibid. at paras 56-58, 74-75.