Canada is home to very attractive options for those
contemplating the initiation of copyright infringement
For example, the Canadian Copyright Act (the
"Act") contains specific provisions that enable
copyright owners to obtain highly cost-effective relief for
infringement claims. These special provisions relate to:
the availability of summary proceedings in copyright
infringement matters, namely applications and robust summary
judgment and trial procedures in actions; and
the availability of statutory damages that simplify the
assessment of damages to be awarded.
Summary proceedings. Section 34(4)(a) of the
Act provides that proceedings for infringement of
copyright or moral rights may be commenced by way of application
rather than by way of a more complicated action. Further, motions
for summary judgment and summary trial can be brought in most
courts in Canada, including in the Federal Court, which hears most
IP matters in Canada.
In proceedings brought by way of an application, as well as in
summary judgment and summary trial motions, evidence is filed by
affidavit. Although the affiants are subject to cross-examination,
there is generally no live testimony of witnesses at the hearing,
nor wide-ranging discoveries like in proceedings brought by way of
an action. As such, Canadian copyright litigation can be conducted
quickly and cost-efficiently.
Statutory damages. The Act also
contains statutory damages provisions that allow the plaintiff to
elect to recover compensation per work infringed — as opposed
to compensation for actual damages (and/or the infringer's
profits) — based on the number of infringing copies.
Statutory damages eliminate the difficult exercise of establishing
the quantum of damages the plaintiff suffered or the quantum of
illegitimate profits derived by the defendant from the
In particular, section 38.1(1) provides that statutory damages
may be awarded by the court "in a sum of not less than $500
and not more than $20,000" for each work infringed with the
proviso that, pursuant to section 38.1(3), even the
minimum amount can be lowered on the basis of proportionality of
damages to the infringing activity "as the court considers
As an example, in a recent case Smart & Biggar handled in
the Federal Court — Adobe Systems Incorporated, Microsoft
Corporation and Rosetta Stone Ltd v Dale Thompson, 2012 FC 1219 — the Court granted summary
judgment, including broad injunctive relief and a monetary award of
well over $400,000 on a motion for summary trial based on affidavit
evidence filed by the plaintiffs. Maximum statutory damages were
awarded in respect of unauthorized reproduction of software works
proven to have been reproduced without authority through purchases
made by the plaintiffs and unauthorized reproduction of cover art
from software products of the plaintiffs by the defendant on the
Conclusion. The availability of statutory
damages and efficient enforcement options may make copyright
infringement an attractive cause of action, even where infringement
of other forms of intellectual property such as trade-marks is the
primary concern. IP rights holders hoping to deal with an
infringement matter should always consider possible copyright
claims and the options offered by the Canadian Copyright
Act, which can provide fast and simple procedures for
addressing infringement of their rights.
The preceding is intended as a timely update on Canadian
intellectual property and technology law. The content is
informational only and does not constitute legal or professional
advice. To obtain such advice, please communicate with our offices
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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