In the recent decision of Voltage Pictures, LLC v. John Doe, 2017 FCA 97, the Federal Court of Appeal reversed the lower court and denied Rogers its costs of complying with a disclosure order (commonly called a Norwich Order) requiring them to disclose the names and details associated with IP addresses which the plaintiff alleges have infringed its copyrights.
At the Federal Court, Rogers was prepared to provide the information, provided they were paid their costs of doing, as is customary for Norwich Orders from non-parties. While on an individual basis the costs may not have been unreasonable, the plaintiff’s concern was that they were pursuing thousands of individual infringers, which would make the cumulative costs of seeking these productions prohibitively expensive.
The Federal Court held that the plaintiff did have to provide the amount demanded by Rogers. On appeal, the Federal Court reviewed the relatively new provisions under the Copyright Act which the plaintiff relied on to compel Rogers to produce this information. Under those provisions, the Act specifically prohibits non-parties from charging a fee to compile the information requested, unless and until a maximum fee is imposed by regulation. Since no regulation has imposed a maximum fee, the Federal Court of Appeal held that Rogers could not charge any fees for that work.
The Federal Court of Appeal did note that the fee restrictions did not specifically extend to the physical act of disclosure, and therefore held that while a non-party cannot seek reimbursement for its efforts to compile the information demanded, it can claim reimbursement for delivery of that information. However, the Court was quick to note that such costs are likely to be nominal.
On August 4, 2017, Rogers filed for leave to appeal the decision to the Supreme Court of Canada.
The importance of this decision lies in the Court’s affirmation that the purpose of these new Copyright Act provisions was to enable copyright owners to easily and efficiently identify those who infringe their copyrights, and recognition that if the costs of such enforcement are prohibitively expensive, then the purpose of these new provisions, and copyrights generally, is not achieved.