The Vancouver Aquarium brought an injunction application to stop
the online publication of a critical video entitled "Vancouver
Aquarium Uncovered", which used the Aquarium's
copyright-protected materials in a "derogatory
manner", according to the Aquarium.
In the fascinating case of Vancouver Aquarium
Marine Science Centre v. Charbonneau, 2016 BCSC
625 (CanLII), the court weighed the Aquarium's effort to
prevent the unauthorized use of their copyright-protected video
clips, against the movie producer's argument that the
exposé is on a topic of public interest and shouldn't be
This represents the first judicial review of Section 29.21 of
the Copyright Act,
first introduced in 2012, which covers "non-commercial
user-generated content". In the injunction application the
court skimmed over this issue, preferring to leave it to trial.
However, the court made passing comments about the availability of
a defence which relies on showing that the copyright-protected
content was used "solely for non-commercial purposes". In
this case, there was evidence before the court that the movie had
recently been screened in Vancouver where attendees had been
charged a $10 entry fee. The court also made reference to an
Indiegogo fundraising campaign related to the movie production.
Ultimately, the court restricted publication of
15 images and video clips – about 4 minutes worth of
content – which the Aquarium claimed to own. The
injunction stopped short of attempting to enjoin publication
of the whole video, but rather ordered that the defendants remove
the 15 contested segments from the video.
If it proceeds to trial, this will be one to watch.
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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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