Internet Service Providers Cannot Charge Copyright Owners Fees for Discharging Their Legislative Obligations under the Notice and Notice Regime

On May 9, 2017, in Voltage Pictures, LLC v John Doe, 2017 FCA 97, the Canadian Federal Court of Appeal (FCA) granted an appeal from the Federal Court’s decision (2016 FC 881) allowing internet service providers (“ISPs”) to charge copyright owners a fee for disclosing suspected infringers’ identities. The appellants, who are movie producers, launched a proposed reverse class action against internet users suspected of illegally downloading their movies. They relied on sections 41.25 to 41.27 (known as the Notice to Notice Regime) of the Copyright Act to compel Rogers Communications Inc (Rogers), an ISP, to reveal the identity of a suspected infringer, but were ordered to pay for the time Rogers spent assembling the information. The appellants opposed the fee, arguing that it was unreasonable.

The FCA held that ISPs cannot charge a fee for the cost of the work necessary to assemble, verify and forward the identifying information to a copyright owner. Because currently there is no regulation fixing the fees, ISPs are responsible for these costs by default. The FCA determined that the purpose of helping copyright owners to protect and vindicate their rights would be frustrated if ISPs were allowed to charge large fees before disclosing identifying information to copyright owners. However, the FCA noted that the Minister of Industry may, by regulation, fix the maximum fee that ISPs can charge for discharging their obligations under the Copyright Act. The FCA indicated that nonetheless, ISPs can in future cases charge a fee, likely nominal, compensating them for the actual, reasonable and necessary costs associated with the act of disclosure.

Summary By: Anna Troshchynsky