Supreme Court of Canada Rules that ISPs Can Recover Reasonable Costs for Identifying Copyright Infringers

On September 14, 2018, the Supreme Court of Canada (SCC) released its decision in Rogers Communications Inc v Voltage Pictures, 2018 SCC 38, concluding that internet service providers (ISPs) are entitled to recover their reasonable costs for identifying copyright infringers in response to a Norwich order from a copyright owner.

The respondents are movie producers who claim that unidentified internet subscribers have infringed their copyright by sharing their films using peer to peer file sharing networks.  The respondents sought a Norwich order to compel Rogers to disclose an infringer’s personal information.

The Federal Court issued a Norwich order requiring Rogers to identify the infringer, and allowed Rogers’ request for a $100 per hour fee.  Voltage appealed.  The Federal Court of Appeal confined Rogers’ recovery to the costs of complying with the Norwich order that did not overlap with its statutory obligations under the Copyright Act (previously reported in the E-TIPS® newsletter here).

The appellant, Rogers, appealed to the SCC.  In allowing the appeal, the SCC concluded that the obligation under a Norwich order for an ISP to disclose a customer’s personal information falls outside the scope of its obligations under the notice and notice regime set out in the Copyright Act.  Thus, the SCC held that Rogers is entitled to recover its reasonable costs of compliance with the Norwich order. The SCC has remitted the matter to the motion judge to determine the quantum of Rogers’ reasonable costs. 

Summary By: Michelle Noonan