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alleged to have infringed copyright online must obtain a Norwich
order to compel the ISP to disclose the person’s identify. The
statutory notice and notice regime has not displaced this
requirement, but operates in tandem with it. This is affirmed by
s. 41.26(1)(b), which contemplates that a copyright owner may sue
a person who receives notice under the regime, and fixes the ISP’s
obligation to retain records which allow that person’s identity to be
determined for a period of time after such notice is received.
[41] With respect to balancing the rights of interested parties, the Supreme Court in Rogers
noted at paragraphs 26 and 27:
[26] For example, Parliament sought to strike a balance between
the interests of copyright owners and of Internet subscribers,
respectively, by preferring a notice and notice regime over a
“notice and take down” regime (see House of Commons Debates,
at p. 2109, per Hon. James Moore). ... the notice and notice regime
allows for notices of claimed infringement to be forwarded
(thereby advancing the rights of copyright holders), while
accounting for the interests of Internet subscribers by maintaining
the presumption of innocence and allowing them to monitor their
own behaviour (and, more specifically, to avoid continued
copyright infringement).
[27] Parliament also sought to balance the interests of copyright
owners against those of Internet intermediaries such as ISPs. ... the
amendments to the Act were also intended to “clarify Internet
service providers’ liability” to copyright owners (Copyright
Modernization Act, summary; see also Legislative Committee on
Bill C-32, Evidence, at p. 1, per Craig McTaggart). To that end,
Parliament insulated ISPs from liability for the copyright
infringement of their Internet subscribers (Act, s. 31.1). Now, to
attract liability under the Act, an ISP must fail to satisfy its
statutory obligations under the notice and notice regime, or provide
a service “primarily for the purpose of enabling acts of copyright
infringement” (ss. 27(2.3), 31.1 and 41.26(3)).
[42] In my view, these comments, which refer back to the objectives of Parliament in
implementing the notice and notice regime, highlight that litigation by rights holders against
internet subscribers was contemplated if deterrence was not achieved by the notice and notice
system. However, it does not suggest an absolute liability framework. As stated, there is a