Canadian Lawyer

June 2020

The most widely read magazine for Canadian lawyers

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www.canadianlawyermag.com 39 orders remain a basic remedy for copyright infringement in online environments. There was an attempt in the Voltage case to use reverse class actions to stop peer- to-peer file sharing of copyright material between users, although it was unsuccessful. Catherine Lovrics, who leads the copyright and digital media practice group at Bereskin & Parr LLP where she is a partner in Toronto, says there is still some potential for its use. "I don't think the final nail in the reverse class action option has been struck." There has been concern among internet enti- ties that the order is overly broad and it is being appealed by TekSavvy. Norwich orders originated from a 1974 British patent case and have essentially been revived to enforce copyright protections in the digital age. It is used when the identity of the perpetrator is hidden and requires the assis- tance of a third party, again, often an internet service provider, to help determine its iden- tity. The Federal Court confirmed in Voltage Pictures, LLC v. Salna in 2019 that Norwich "There is kind of an ethos that Canadians sometimes talk about. . . . I think this concept of proportionality, balance, fairness comes through in many different areas of the law." Daniela Bassan, Stewart McKelvey She does, however, expect site-blocking orders to gain much more traction in the attempt to prevent the illegal use of copy- righted material by offending sites run by actors who refuse to respond to litigation and have shown they are not interested in abiding by the rules. University of Windsor law professor Myra Tawfik, an expert in intellectual property, says third parties have always been involved in copyright. But now, instead of the publishers of books and broadcasters stick-handling the issues, internet service providers have increasingly become the intermediaries. And through the electronic magic of digital connection, there are often no intermediaries at all — users can have direct access to the creators, making that middleman obsolete. While she calls copyright law quite adaptive and resilient despite its flaws, the digital age has also tested copyright. "I do think that the digital age has actually been really transformative and really it tested TEST FOR A NORWICH ORDER The Supreme Court of Canada in Rogers Communications Inc. v. Voltage Pictures, LLC developed the test for a Norwich order: A bona fide claim against the unknown wrongdoer; The person from whom discovery is sought must be involved in the matter under dispute; The person from whom discovery is sought must be the only practical source of information available; The person from whom discovery is sought must be reasonably compensated for his expenses; The public interests in favour of disclosure must outweigh the legitimate privacy concerns.

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