The Federal Court of Appeal in a high profile copyright case involving Canada’s “notice and notice” regime has clarified a plaintiff’s evidentiary burdens on proving direct and indirect/authorized infringement.

By way of background, the Federal Court dismissed a motion for default judgment. It found the respondents were in default of filing a defence, but determined the appellant had not provided sufficient evidence to establish the respondents either were the direct infringers themselves, or possessed sufficient control over those who posted the work (film called Revolt) to have authorized the infringement.

The Federal Court rejected the appellant’s argument that the notices sent under the “notice and notice” regime shifted the burden of proof to the respondents to disprove the allegations set out in its statement of claim. Instead, it noted that the appellant was “required to lead sufficient evidence to allow the Federal Court to conclude on a balance of probabilities that the respondents were the proper defendants to the underlying action and have infringed copyright. The Federal Court concluded, based on the facts of the case, that it was premature to draw an adverse inference against the respondents.

The decision of the Federal Court of Appeal is noteworthy for many reasons. It contains excellent summaries of the law of “authorizing” copyright infringement, burdens of proof (legal and evidentiary), and adverse inferences. It summarized the law as:

“Taken together, Cook, National Trust, Snell, Rainbow Caterers, Hollis, and Benhaim show that the allocation of the burden of proof must be responsive to the parties, their respective abilities to procure or access critical evidence, and the issues raised in the matter. They also show that inferences may be drawn where a plaintiff cannot reasonably be expected to prove every aspect of their injury.”

Turning to the facts, the Court dismissed the default motion for direct infringement because the appellant failed to prove that the internet subscriber was the individual responsible for the infringing activity connected to the internet account and no adverse inference was permissible because a presumption of innocence underlies the “notice and notice” regime. In essence, the statutory regime displaced the common law principles of adverse inference. The Court referred to the Supreme Court’s Rogers 2018 decision which held that “a mere association with an offending IP address is not conclusive that the corresponding internet subscriber shared copyrighted material online.” In the default motion, the appellants evidence did not link the respondents to the infringing activity and no adverse inference was possible.

On the indirect or authorizing infringement claims, the Court held that the appellant failed to prove any activity beyond the respondents’ sharing of their internet accounts. This evidence did not prove any infringing activity – just sharing an internet account is not sufficient. The appellants had to prove that the work was: (i) streamed or made available for on demand by the respondent; (ii) downloaded by the respondent; or (iii) made available for downloading by the respondent” to establish infringing activity.

The appeal was dismissed.

Voltage Holdings, LLC v Doe #1 et al, and Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. 2023 FCA 194

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