The Copyright Modernization Act, enacted 29 June 2012, inserted a new section 41 in the Copyright Act (R.S.C., 1985, c. C-42). Sections 41.25 and 41.26 provide for a “notice-and-notice” regime for both Internet access providers and hosting providers.
A copyright owner who detects an apparent infringement on the internet may send a notice (providing certain statutory particulars) to the service provider, who must then forward it to “the person to whom the electronic location identified by the location data specified in the notice belongs” – presumptively, the account holder. The ISP must inform the claimant of its action and retain the details for 6 months, or 1 year in case the claimant begins proceedings “relating to the claimed infringement”. This is presumably intended to allow the right holder sufficient time to bring appropriate proceedings for discovery against the ISP to obtain the name of the alleged wrongdoer. As Canada permits the use of “John Doe” actions, the right holder will be able to issue his proceedings and bring his discovery claim within those proceedings.
The ISP’s compliance with this procedure has no effect on its ability to rely on the exemptions from liability provided to ISPs under section 41.27. However, failure to carry out the duty may result in a liability for statutory damages of no less than $5,000 and no more than $10,000.
On 17 June 2014 the Government announced that it was about to bring these provisions into force with effect from January 2015, publishing a short ‘backgrounder‘ at the same time. The Government has decided not to issue any additional regulations, although empowered to do so under the Act. This has the effect that ISPs will not be able to charge for performing their duties under the section.
The question which costs may be recovered by the ISP when required to disclose subscriber account information in a Norwich Pharmacal application was litigated up to the Supreme Court of Canada in Rogers Communications Inc. v. Voltage Pictures, LLC 2018 SCC 38. The courts at all levels confirmed that in the absence of Ministerial order, the ISP was not entitled to any costs of its forwarding of the notice, but differed on the question whether the existence of the statutory duty limited the costs recoverable by the ISP on compliance with the disclosure order. On 14 September 2018, the Supreme Court held that while the ISP was entitled to its reasonable costs of providing the information, it was not entitled to recover the costs of repeating steps required under the notice-and-notice procedure. The court before which such claims for reimbursement came “should carefully review an ISP’s evidence when assessing costs of compliance with a Norwich order, to determine whether an ISP’s proposed fee is reasonable, in light of its obligations under the notice and notice regime.” The case was remitted for decision on the facts and no costs of the appeal were allowed.
A dissenting judgment agreed with the disposal of the appeal, but argued that, as a matter of fact, all the steps undertaken by the ISP to provide the requested information fell outside its statutory duties under the notice-and-notice regime, and further suggested that such a finding was open to the first-instance court consistently with the holding of the majority.