Rogers Communications takes piracy tracking fee fight to the Supreme Court

TORONTO — Rogers Communications continues to fight for the right to charge copyright holders a fee for tracking down movie pirates on its networks, announcing it filed with the Supreme Court a notice of application to appeal a previous Federal Court of Appeal decision on the matter.

In May, the Federal Court of Appeal ruled that Rogers is not allowed to demand a fee from copyright owners who ask the giant ISP to help track down individuals suspected of pirating movie and TV content. Rogers had until early August to appeal the decision, which it has done by filing on August 4 an application for leave to appeal to the Supreme Court of Canada.

In its appeal application, Rogers states: “This case — the first to interpret key provisions of the Copyright Act that came into force in January 2015 — raises questions of national and public importance relating to the ‘notice and notice’ system, a unique model developed by Canadian internet service providers to discourage online copyright infringement. It impacts all internet-using Canadians, including the vast majority who do not engage in online infringement.”

“Notice and notice” began as a voluntary system created by Canadian ISPs as an alternative to the American “notice and take down” system, which has been criticized for preferring the rights of copyright owners over users, Rogers pointed out in its appeal application. The “notice and notice” system eventually became mandatory in Canada in 2012, when Parliament enacted sections 41.25 and 41.26 of the Copyright Act (known as the “Notice and Notice Provisions”).

Under the Notice and Notice Provisions, ISPs are not currently permitted to charge fees for their section 41.26 obligations of transmitting a notice to a subscriber suspected of copyright infringement and for retaining the required records that allow the identity of the subscriber to be determined.

“The Notice and Notice Provisions are silent on how a copyright owner can obtain disclosure of the subscriber’s identity from ISPs. However, there is a long-standing common law remedy — the Norwich order — which enables copyright owners to obtain an alleged infringer’s identity by asking a court for an order for third party discovery,” Rogers wrote in its application to appeal.

“Because they are directed at innocent information-holders, courts require the party seeking a Norwich order to reimburse third parties for any costs of compliance that they incur,” Rogers wrote. “The respondents in this application (collectively “Voltage”) asked the courts below to relieve them of the obligation to reimburse ISPs for their costs of compliance with Norwich orders. Voltage argued that the Notice and Notice Provisions impose broad obligations which ISPs must discharge without reimbursement, so reimbursement should not be permitted when a Norwich order is granted.”

Rogers is asking the Supreme Court of Canada to consider the scope of ISPs’ obligations under the Notice and Notice Provisions of the Copyright Act. In its decision, the Federal Court of Appeal suggested that ISPs pass along costs associated with their Notice and Notice Provisions obligations to their Internet subscribers, Rogers said.

“ISPs play a crucial role in facilitating internet access and therefore the digital economy. While this Court has been clear that the consequences of disputes between copyright owners and users should not be ‘visited on the heads of ISPs’, the Court of Appeal’s decision does precisely that. If upheld, the decision imposes costs and burdens on ISPs that are not contemplated by the legislative scheme, and that will require innocent users to bear compliance costs that should be borne by infringers,” Rogers wrote in its appeal application.

Rogers concluded by asking the Supreme Court to grant the company leave to appeal so the Court can provide guidance on the following issues:

1. What are the obligations imposed on Canadian ISPs by the Notice and Notice Provisions?
2. Do those obligations supplant ordinary principles related to third-party discovery orders, and in particular, the principle that a third party should be reimbursed for the costs it incurs?