Unlike many countries which provide an effective "notice
and take down" remedy for copyright owners whose works are
wrongly posted on internet sites, Canada has implemented a
"notice and notice" regime. In Voltage Pictures, LLC
v. John Doe 2016 FC 881, the Federal Court interpreted some
aspects of that regime in a reverse class action suit brought by
several parties against a John Doe defendant.
The applicants are a number of organizations that claim
copyrights in works alleged to be infringed by an unknown
respondent and made application for a disclosure order "in
accordance with" sections 41.25 and 41.26 of the Copyright
Act. Section 41.25 provides the ability of a copyright owner
to send a notice to the person providing connectivity to the
location on the internet from which an infringement is alleged as
well as the form and content of the notice. Section 41.26 requires
the person receiving the notice to forward the notice to the person
to whom the internet address belongs as well as requiring the
retention of records that will allow the identity of the person to
whom the internet address belongs to be determined. Fees can be
charged for forwarding the notice but to date no regulations have
The applicants were seeking a Norwich disclosure
order1 recognized by the Federal Court of Appeal in
BMG Canada Inc v Doe, 2005 FCA 193. Such an order would
require a non-party (the ISP) to disclose the identity of an
account holder. Obtaining such an order requires satisfying the
The applicant for a Norwich
order must have a bona fide case;
The party against whom such an order
is to be issued must have information on an issue in the
An order of the Court is the only
reasonable means by which the information can be obtained;
Fairness dictates that the
information be provided prior to discovery or trial or, in the
circumstances of this case, prior to certification of the proposed
class proceeding; and
Any order made will not cause undue
delay, inconvenience, or expense to the party against whom such an
order is to be issued or others.
The applicants argued that the above provisions that set up the
"notice and notice" regime should deny compensation to
the third party (the ISP, Rogers, in the present case) for the
costs involved in complying with such a request.
The Court noted that the implementation of the "notice and
notice" regime had not changed the law applicable to the
provision of a Norwich order.
The Court did find sufficient evidence to show a bona
fide claim that unknown persons are infringing the copyright
in their films and the other elements of the BMG
principles were shown.
As in past cases of this kind the Court exercised caution on the
disclosure of the subscriber information so that privacy rights are
minimally impaired. In this case the Court ordered Rogers to
disclose only the Subscriber's name and address as recorded in
Rogers' records and found Rogers was entitled to a reasonable
fee, in the amount of $100 plus tax, as well as costs in the
motion. The actual order included privacy safeguards following on
earlier Norwich order litigation, Voltage Pictures LLC
v John Doe, 2014 FC 161, which were
1 Emanating from the decision in Norwich
Pharmacal Co. v. Customs & Excise Commissioners
(1973),  A.C. 133 (UK HL).
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