In­ter­net providers can re­coup costs: Supreme Court


In­ter­net ser­vice providers can re­cover some of the costs of help­ing movie com­pa­nies and other copy­right hold­ers find il­le­gal down­load­ers, the Supreme Court of Canada says.

In a 9-0 de­ci­sion Fri­day, the high court sided with Rogers Com­mu­ni­ca­tions in rul­ing that the com­pa­nies pur­su­ing copy­right vi­o­la­tors should re­im­burse ser­vice providers a rea­son­able amount for the ef­fort of look­ing up sub­scribers sus­pected of break­ing the law.

The de­ci­sion could end up sav­ing Rogers and other in­ter­net providers many thou­sands of dol­lars, but the Supreme Court said the ap­pro­pri­ate fees should be de­cided at a fu­ture Fed­eral Court hear­ing.

The case be­gan when Volt­age Pic­tures and sev­eral other movie pro­duc­tion firms asked Rogers for in­for­ma­tion about an al­leged vi­o­la­tor un­der pro­vi­sions of the Copy­right Act.

Rogers re­trieved the in­for­ma­tion but agreed to dis­close it only upon pay­ment of a fee — $100 per hour of work plus HST.

Volt­age Pic­tures and its movie com­pany al­lies hope to even­tu­ally ob­tain the in­for­ma­tion of tens of thou­sands of sus­pected copy­right in­fringers, and they ar­gued the fed­eral leg­isla­tive regime pre­cluded Rogers from charg­ing a fee.

In 2016 the Fed­eral Court said Rogers was en­ti­tled to levy the fee but the de­ci­sion was over­turned the fol­low­ing year on ap­peal, prompt­ing the tele­com com­pany to take its case to the Supreme Court.

Rogers said the ap­peal was about who must bear the costs of en­forc­ing copy­right on the in­ter­net: the copy­right owner who launches the pro­ceed­ing, and who can col­lect back costs from an in­fringer, or a third­party In­ter­net ser­vice provider, whose only op­tion is to raise prices for its cus­tomers.

The Supreme Court rul­ing is “an im­por­tant win for our cus­tomers and mil­lions of in­ter­net sub­scribers fac­ing open sea­son on their per­sonal in­for­ma­tion,” said David Watt, Rogers se­nior vice-pres­i­dent of reg­u­la­tory af­fairs.

Rogers uses an au­to­mated sys­tem to send a no­tice to the more than 200,000 al­leged copy­right in­fringers brought to its at­ten­tion each month — some­thing it is re­quired to do un­der the Copy­right Act with­out charg­ing a fee.

But Rogers said it should be com­pen­sated for the steps it must take when con­fronted with a court or­der from a movie com­pany or other copy­right holder for the name and ad­dress of a sub­scriber.

In writ­ing on be­half of eight of the mem­bers of the Supreme Court, Jus­tice Rus­sell Brown noted Rogers un­der­takes an eight-step man­ual process to com­ply with such an or­der. But he in­di­cated it was un­clear how many of those steps Rogers must al­ready carry out at no cost un­der the law as part of its rou­tine func­tions.

Brown said Rogers and other ser­vice providers are en­ti­tled to “rea­son­able costs of steps that are nec­es­sary to dis­cern a per­son’s iden­tity” us­ing the records it is re­quired to keep.

He added that while these costs “may well be small,” it is im­pos­si­ble to de­ter­mine them based on cur­rent ev­i­dence, mean­ing a fresh Fed­eral Court hear­ing must be held to as­sess fees a provider can charge.

While agree­ing with the ma­jor­ity, Jus­tice Suzanne Cote went fur­ther, say­ing Rogers should be able to levy a fee for all eight steps it takes to re­spond to a court or­der.

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