Rogers Communications Inc. v. Voltage Pictures, LLC, et al.
(Federal Court) (Civil) (By Leave)
Legislation - Interpretation, Intellectual property, Copyright - Legislation – Interpretation – Intellectual property – Copyright – What is the scope of the obligations imposed on Canadian Internet Service Providers by sections 41.25 and 41.26 of the Act – Do those obligations supplant ordinary principles from Norwich Pharmacal Co. v. Customs & Excise Commissioners (1973),  A.C. 133 (UK HL) related to third-party discovery orders, and in particular, the principle that a third party should be reimbursed for the costs it incurs.
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The respondent movie producers allege that persons are engaging in illegal file sharing of their movies over the Internet. They have initiated a proposed class proceeding claiming declaratory, injunctive and other relief against a proposed representative respondent whose identity was unknown to them. They brought a motion for an order compelling the applicant (“Rogers”) to disclose any and all contact and personal information of a Rogers customer associated with an identified Internet protocol address and specified times and dates. The respondents and Rogers are at odds over whether Rogers should be compensated for providing the disclosure.
The Federal Court granted an order for disclosure of the customer’s name and address only. The Court held that since the disclosure was not part of the notice and notice scheme under ss. 41.25 and 41.26 of the Act, Rogers could claim compensation for its hourly fee to assemble, verify and transmit the information. The Federal Court of Appeal allowed the appeal and set aside the order requiring payment of Rogers’ fee and costs. The Court held that since all but the transmitting of the disclosed information came under the services contemplated by ss. 41.25 and 41.26, Rogers should not be entitled to reimbursement for statutory obligations which the Legislator had decided not to remunerate at this time. Since Rogers had failed to meet its burden of proving what the costs of transmittal would be, no fee was payable. Rogers appeals that decision.
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