17 September 2018Copyright

Canada’s Supreme Court sides with ISP in copyright dispute

The Supreme Court of Canada has unanimously held that internet service providers (ISPs) can request compensation for the costs affiliated with providing the personal information of suspected infringers to copyright owners.

Canada’s highest court handed down its decision in Rogers Communications v Voltage Pictures on Friday, September 14.

The dispute arose when Canadian telecoms group Rogers and American film company Voltage disagreed over whether Rogers should be compensated for disclosing personal information associated with an IP address.

Voltage claimed that people had been illegally sharing movies, including as “American Heist” and “The Cobbler”, over the internet and sought to obtain injunctive relief against one respondent before suing an additional 55,000 customers for infringement.

As the representative respondent’s identity was unknown, Voltage asked Rogers, the ISP of the respondent, to disclose the personal information of its customer.

Rogers asked that the film company pay a fee to obtain the information, but Voltage argued that the telecoms group had a statutory obligation to provide the information so it could not charge for the disclosure.

In 2016, the Federal Court of Canada ordered Rogers to disclose the customer’s name and address. The court held that Voltage should compensate Rogers for the fees incurred in generating, verifying, and providing the requested information.

Voltage appealed against the decision and, in 2017, Canada’s Federal Court of Appeal set aside the lower court’s order. It ruled that Rogers should not be reimbursed for fulfilling its statutory obligations.

Rogers appealed against the decision.

According to Canadian news network CTV, Rogers claimed that copyright owners (such as Voltage) which launch legal proceedings are able to claim back the costs of these proceedings from the infringer.

However, third-party ISPs would have to increase the costs paid by consumers if forced to cover the fees incurred in disclosing the information, Rogers claimed.

Last week, the Supreme Court sided with the telecoms group in a 9-0 decision.

The court said that ISPs are entitled to recover reasonable costs incurred by taking the necessary steps to uncover a customer’s identity, but they cannot charge for things that they must do anyway under the Copyright Act.

Rogers follows an eight step process when responding to court orders relating to customer information disclosures, and the Supreme Court noted that the telecoms group is only obligated to fulfil some of these steps under the Copyright Act.

For example, connecting the IP address of a customer to their real-life identity and sharing that information with the copyright owner is not covered by the legislation, the court said.

The Supreme Court added that although these fees may be small they are not negligible, so the Federal Court must assess the fees to be paid at a hearing. As such, the scale of compensation that Rogers is entitled to has yet to be determined.

Speaking to WIPR, David Watt, senior vice president, regulatory, at Rogers, said: "This is an important win for our customers and millions of internet subscribers facing open season on their personal information.”

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