Canada: Foraging For Photographs In The Great White North: Canadian IP Considerations Concerning Photographs From The Internet

Copying content from the Internet is a lot like picking berries in the wild: It can be easy and tempting, but potentially quite risky. In this regard, photographs and other images are like the low-hanging fruit of the Internet because they are so easy to find and copy.

In the recent case of Point du jour aviation ltée c Simard, 2014 QCCQ 13560,an aviation company sought damages against an individual for allegedly altering and posting a photograph without authorization on a website and Facebook page critical of the local airport. The Judge accepted that the aviation company owned the copyright in the photograph and that unauthorized use of the photograph was an infringement. However, the plaintiff failed to prove that the individual defendant was the person who altered and posted the photograph, and the claim was therefore dismissed.

This decision highlights the potential for liability in Canada when using third party photographs without permission.  It is therefore important to understand the risks associated with using third-party images as well as the remedies available against third-party use. Both scenarios present a number of intellectual property issues for businesses operating in Canada.

Canadian intellectual property issues

The primary legal issues that may arise from the use of photographs are copyright infringement, trademark infringement and violation of personality rights.

The risk of trademark and personality rights issues arising is tied to the particular content of the photograph in question. For instance, if a photograph depicts a well-known person, use of the photograph may violate that person's "personality rights" if it is used for commercial purpose without authorization. The term "personality" here refers to the attributes for which the person is well-known, such as his or her likeness. Canadian provincial laws provide causes of action to address the unauthorized exploitation of one's personality. Alternatively, if the photograph prominently includes a trademark in a manner that incorrectly suggests an association with the brand owner, or in a manner that would damage the goodwill in the mark, there is a risk of liability under the Trademarks Act.

In contrast, the risk of copyright infringement generally arises regardless of the content of the photograph, since photographs taken almost anywhere in the world, and regardless of subject matter, are automatically entitled to copyright protection under section 5(1) of the Canadian Copyright Act (the "Act"). This right subsists in a given photograph for 50 years following the death of its author, pursuant to section 6 of the Act, whereupon it becomes public domain and can freely be used.

Two aspects of Canada's copyright system are particularly relevant to businesses seeking to use or to stop others from using photographs plucked from the Internet.

Canada's "fair dealing" exception

The Act provides a limited number of specific "fair dealing" exceptions to copyright infringement, including research, private study, education, parody and satire. In order to claim the benefit of a fair dealing exception, the use of the copyrighted work must accord with one of these specific purposes enumerated in the Act, and the dealing must be "fair", which typically excludes any commercial dealing.

Given these restrictions, it is unusual for marketing and other business materials to be considered fair dealing. A business seeking to use a third-party photograph in its materials will normally be required to seek a licence. By contrast, the narrowness of this exception benefits businesses seeking to stop unauthorized third parties from using its copyrighted photographs or other images.

The Canadian approach to "fair dealing" of specific and exhaustive exceptions is distinct from the United States approach to "fair use", which applies a four-factor test to determine what amounts to fair use, resulting in an opened list of possible exceptions. As a result, Canada provides a favorable and predictable environment to prevent unauthorized use of copyrighted material for commercial purposes.

Canada's "Notice and Notice" regime

Canada has recently added to the tools available to remove copyright infringement from the Internet. On January 2, 2015, Canada's so-called "Notice and Notice" regime came into force pursuant to the Copyright Modernization Act passed in 2012. By this scheme, a copyright owner may provide notice of copyright infringement to the relevant Internet service provider ("ISP") or host, who must then forward the notice as soon as feasible to the customer associated with the content, inform the copyright owner of that notice, and retain records identifying the customer for a certain period of time.

Given that photographs are so easily copied from the Internet and typically used in the same medium, the Notice and Notice regime provides copyright owners a new way of expeditiously prompting the removal of infringing uses of their photographs where they are bound to crop up most.

Canada's Notice and Notice regime stops short of the established "Notice and Takedown" approach in the U.S. pursuant to its Digital Millennium Copyright Act. Under the U.S. scheme, an ISP is liable for copyright infringement unless, upon notice of the claimed infringement, it swiftly removes or disables access to the allegedly infringing content. Under the Canadian regime, ISPs have no obligation to remove content (although they may do so voluntarily); the copyright owner must seek relief in court if the alleged infringer does not respond to the notice.

In closing, the Internet has made it much easier to obtain and copy an amazing variety of photographs and images, which has thereby increased the potential to infringe others' copyright, trademark rights or personality rights. Fortunately, systems exist within Canadian law that limit infringers' defences and enable rights-holders to put a stop to such infringement.

For further information, please contact a member of our firm's Copyright & Media group

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 directly.

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Daniel Anthony
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