The Honourable Justice Campbell of the Federal Court of Canada
has recently awarded default judgment to Twentieth Century Fox,
including $10,500,000 in damages, against an individual who had
copied and posted episodes of The Simpsons and Family Guy on the
internet (Fox v Hernandez). Justice Campbell
also awarded broad injunctions against infringement of copyright in
any works relating to the programs and enjoining infringement of
copyright in any other works within which Twentieth Century Fox
owns copyright, including works that come into existence after the
date of the judgment.
The decision affirms the availability of significant awards
through effective procedures available in the Federal Court against
those who blatantly infringe copyright in Canada. Recent decisions
also make it clear that copyright infringers will not be able to
avoid justice by failing to defend proceedings against them.
In the Fox v Hernandez case, Justice Campbell awarded
$10,000,000 in statutory damages. In the Notice of Application
filed by Fox, it was alleged that the individual had copied and
posted at least 700 episodes of the programs on the "Watch the
Simpsons Online" and "Watch The Family Guy Online"
websites that he operated. It was further alleged that the
defendant profited from sales of advertising and promotional items
related to the programs. In light of the number of separate
episodes, the $10,000,000 award was supported despite the $20,000
per work cap on statutory damages in Canada.
In a previous case involving unauthorized sales of computer
software (Adobe v Thompson), the Court awarded maximum statutory
damages in respect of infringement of copyright in works proven by
Adobe, Microsoft and Rosetta Stone to have been infringed by an
individual selling unauthorized copies of their software. In that
case, maximum statutory damages were awarded in respect of software
programs proven to have been sold, as well as in respect of cover
art reproduced by the individual on internet websites. The Court
also awarded punitive damages of $100,000. The decision was
rendered through a summary judgment motion that was not defended by
the individual copyright infringer.
In the Fox v Hernandez case, Justice Campbell
specifically indicated that he felt that the award of statutory
damages "would be insufficient to achieve the goal of
punishment and deterrence of the offence of copyright infringement
in this case" and he also awarded $500,000 in punitive damages
against the individual.
It is now clearly established that courts in Canada, and the
Federal Court in particular, are willing to award significant
damages and costs in undefended proceedings involving blatant
infringement of copyright works, including through online sales or
distribution. The apparent belief by some infringers of copyright
in Canada that they may be able to avoid adverse consequences
flowing from their infringing activities by not defending court
proceedings commenced by copyright owners should now be completely
laid to rest. While the Court will require evidence to establish
copyright and the infringing activity, and while each case will
turn on its own facts, the willingness of the Court to award
significant statutory and punitive damages and costs in undefended
proceedings makes it viable for copyright owners to expeditiously
enforce their rights with the expectation of deterrent awards being
In addition, the Federal Court has recognized in these cases
that copyright may be infringed by various steps in online
distribution. In the Adobe v Thompson case, the finding
that posting of cover art was sufficient to warrant maximum
statutory damages in the circumstances of that case was
significant. In the Fox v Hernandez case, Justice Campbell
found infringement at various stages, including the initial copying
of the programs, copying of the programs on to a computer system,
uploading the unauthorized copies to servers, creating links to the
servers, communicating the programs to the public by
telecommunication and by enabling the public to infringe by
"downloading, streaming and/or copying ... the unauthorized
copies ... through internet enabled devices."
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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