Canada: The Battle For Copyright Protection In The Digital Era

The age of the Internet poses many new challenges to those individuals seeking to protect and enforce their intellectual property rights online. As the Federal Court of Appeal in Canada recently stated: "Under the cloak of anonymity on the internet, some can illegally copy, download, and distribute the intellectual property of others, such as movies, songs and writings." (Voltage Pictures, LLC et al. v. John Doe #1 et al., 2017 FCA 97 at para. 1 [Voltage Pictures].) As a result, Canada has slowly began modernizing its copyright regime in order to allow the cloak of anonymity to be lifted and the identity of alleged infringers to be revealed. (See e.g., Copyright Modernization Act, S.C. 2012, c. 20, s. 47.)

Canada's Notice / Notice Regime

The new legislative regime works through a set of notices. If the owner of a copyright in a work believes that his or her copyright has been infringed, the owner may send a notice of infringement to an Internet Service Provider (ISP). The notice must set out information that allows the ISP to review its records and identify the suspected infringer. This triggers a set of obligations under the Copyright Act that an ISP must follow, including:

  • Sending the notice from the copyright owner to the suspected infringer
  • Maintaining records in a manner and form that allows it to identify suspected infringers
  • Verifying the identification work the ISP has done (if necessary)
  • Translating the records (if necessary) into a manner and form that allows them both to be disclosed promptly and to be used by copyright owners and later the courts to determine the identity of the suspected infringers

(See Copyright Act, R.S.C. 1985, c. C-42, s. 41.26(1).)

These obligations only arise upon the ISP being paid a "lawfully charged" fee.

Strategies for identifying alleged infringers online

Many copyright owners are starting to take advantage of Canada's new copyright regime. In a previous post, we reported on a new strategy adopted by Voltage Pictures, LLC (Voltage) against alleged copyright infringement by anonymous Internet users. This strategy involved a "reverse class action" (i.e. one plaintiff versus multiple defendants) against an unknown number of alleged infringers of various copyrights in movies.

Under Canada's new copyright regime, Voltage sought information from an ISP, Rogers Communications Inc. (Rogers), identifying suspected infringers online. Rogers assembled the identifying information under its obligations in the Copyright Act. Voltage moved for an order in the Federal Court requiring the identifying information to be disclosed to them. Rogers was prepared to disclose it, but only if Voltage paid them a fee for their services in the amount of $100 per hour of work plus HST.

The Federal Court permitted Rogers to charge a fee, since the Copyright Act allows such a fee to be charged by the ISP. The Federal Court of Appeal reversed this decision. The Court of Appeal held that, pursuant to the language of the Copyright Act, a fee can only be charged if the Minister, by regulation, fixes the maximum fee that an ISP may charge for performing their obligations under the Act. Since the Minister has not yet fixed a maximum amount, no fee may be charged at this time. (See Voltage Pictures at paras. 42-54. However, the Court of Appeal noted that the Copyright Act is silent on whether an ISP can charge a fee for actually disseminating the identifying information to the copyright owner. The Court held that such a fee is reasonable and can be charged by an ISP.)

Shift towards protecting online intellectual property rights

In arriving at its decision, the Federal Court of Appeal considered the language of the Copyright Act as well as the purpose and intent of the new legislative regime. The Court held that the protection and vindication of the rights of copyright owners is "no small thing" and that this is a "central feature" of both the Copyright Act and the Copyright Modernization Act. The Court also noted the importance of updating the rights and protections of copyright owners in a digital era and that the challenges and opportunities of the Internet has led to new issues that need to be addressed.

It is clear from the Voltage Pictures decision that users cannot evade infringement of intellectual property rights simply through anonymity: "The internet must not become a collection of safe houses from which pirates, with impunity, can pilfer the products of others' dedication, creativity and industry." Therefore, courts more recently appear to be interpreting the Copyright Act in a manner that allows copyright owners to protect and vindicate their rights as quickly, easily and efficiently as possible.

In the ongoing battle for protection of intellectual property rights online, the owners of those rights seem to be winning...for now.


About Norton Rose Fulbright Canada LLP

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