Copyright law offers up a panoply of interesting questions,
which often verge on the philosophical. One such question is: if
one tries to make a copy of something, but the copy is defective
and useless, has one made a copy at all? According to a recent
decision of Master Hanebury, of the Court of Queen's Bench of
Alberta, the answer could be yes.
The decision, in Geophysical Service Inc v Antrim Energy Inc, 2015
ABQB 482, involved a claim of copyright infringement of
geophysical data that had been obtained from a regulatory board.
The plaintiff, GSI, is in the business of producing and licensing
seismic data. The defendant, Antrim, had previously investigated
the possibility of licensing data from GSI, but ultimately did not
do so, apparently because of cost concerns.
Subsequently, Antrim requested and received access to certain
information, including seismic data, held by the Canada
Newfoundland and Labrador Offshore Petroleum Board (CNLOP). In
particular, it received paper photocopies of two lines of seismic
data produced by GSI which were blurry and, according to Antrim,
unusable. Antrim's evidence was that these documents were
placed in a filing cabinet and promptly forgotten about.
Antrim applied for summary dismissal of the claim, on several
grounds, none of which were ultimately successful. The argument of
interest for this note is that the copy Antrim obtained from the
CNLOP was unreadable and useless to it.
Master Hanebury ruled that this did not amount to grounds to
summarily dismiss GSI's claim.
There are two important caveats to note. First, there
has been no finding of copyright infringement in this case. The
decision to reject the application for summary dismissal merely
means that the matter could go to trial (although the parties could
always reach a settlement instead). Second, copyright infringement
is a highly fact-driven analysis. So this decision does not mean
that an unusable copy will always infringe copyright, or
even that it does in this particular case. But the analysis is
To infringe copyright, a copy must reproduce "any
substantial part" of a protected work. Precisely what that
means is one of the central preoccupations of copyright law. The
test is both quantitative and qualitative. "As a general
proposition, a substantial part of a work is a part of the work
that represents a substantial portion of the author's skill and
judgment expressed therein."1
There was no dispute that Antrim intended to have a
copy made (although it apparently did not specifically know the
works originated from GSI). Master Hanebury considered that the
blurry copy which it received was, in fact, a copy. It arguably
reproduced a substantial part of the original work because,
quantitatively, it represented the entire work, and qualitatively,
it was intended to avoid the time and expense of negotiating a
license for the work. The fact that no adverse effect actually
resulted from Antrim's use of the copy was a relevant factor to
be considered, but not determinative. Accordingly, Master Hanebury
could not conclude that there was a high enough likelihood of
Antrim's argument prevailing to justify a summary
Master Hanebury's reference to Antrim's subjective
intention in assessing infringement is doctrinally interesting.
Copyright infringement is generally considered to be a matter of
strict liability: if one makes an infringing copy in fact, it is
irrelevant whether one intended to do so or not. Conversely, if one
does not in fact make an infringing copy, merely intending to do so
is not, by itself, actionable. Does this leave room to consider
subjective intention when assessing the extent to which a putative
copy is a substantial reproduction of an original work? It seems
However, the same result might have been reached had Master
Hanebury instead applied the approach endorsed by the Supreme Court
of Canada in the Robinson case. If a comparison of the
blurry copy to the original revealed identifiable elements of the
original in the blurry copy which, together, amounted to a
substantial part of the original, the copy could reasonably be said
(ignoring other possible defences) to infringe copyright in the
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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