A Year In Canadian Copyright Law: Notable Decisions And Updates From 2025

2025 was an eventful year for the development of copyright law in Canada. Key decisions considered important issues, such as the jurisdiction of Canadian courts to hear actions for copyright infringement against foreign generative AI companies, the potential tenability of a "misuse of copyright" defence, strategies and remedies for the online enforcement of copyright, and the substantive and evidentiary requirements for proving copyright infringement. The key decisions provide practical takeaways for businesses and individuals who want to ensure their works are adequately protected.

The Cassels Intellectual Property Group has reviewed key decisions, policy updates, and cultural conversations that impacted Canadian copyright law in 2025 and that will, undoubtedly, continue to shape the future of Canadian copyright law in 2026.

• Updates in Canadian AI Litigation
  • Toronto Star Newspapers Limited v. OpenAI Inc., 2025 ONSC 6217
  • Doan v. Clearview AI Inc., 2025 FCA 133
  • Robillard c. Meta Platforms, inc., 2025 QCCS 4131
• Updates in Canadian AI Policy and Legislative Reform
  • Stakeholders Comment on Copyright in the Age of Generative AI
  • Launch of AI Task Force
• Online Enforcement: Site Blocking, Norwich Orders, and Other Developments
  • Bell Media Inc. v. John Doe 1 (Soap2day), 2025 FC 133
  • Bell Canada v. Millennium Funding, Inc., 2025 FCA 153
  • Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 461, 2025 FC 1378
  • Voltage Pictures, LLC v. Salna, 2025 FCA 131
  • Hellboy Productions, Inc. v. Doe #1, 2025 FC 1766
  • Yelda Haber Ve Gorsel Yayincilik A.S. v. GLWiZ Inc., 2025 FC 1107
• Decisions Highlighting the Importance of Evidence
  • Matsumoto v. Canuck Eats, 2025 FC 2017
  • Dermaspark Products Inc. v. Danielle Ipince, 2025 FC 946
  • McQuaig v. Enbridge Gas, 2025 FC 1439
  • ITP SA v. CNOOC Petroleum North America ULC, 2025 FC 684
• Decisions and Developments Involving Core Copyright Principles
  • Navtech Inc. v. Chantier Davie Canada Inc., 2025 FC 833
  • Governing Council of the University of Toronto v. Easy Group Inc. (Easy Education), 2025 FC 1728
  • Cavan Specialty Advertising Ltd. v. Les Promotions Universelles Inc., 2025 FC 205
  • Nexus v. Krougly, 2025 ONSC 1346
  • Gold Line Telemanagement Inc. v. Ereele GmbH, 2025 FC 904
  • "Live Forever": Ownership and Usage of Concert Photos
  • A Spoon by Any Other Name: Supreme Court of Canada Denies Leave to Appeal in Room Full of Spoons Saga

Updates in Canadian AI Litigation

In 2025, numerous actions for copyright infringement were commenced against generative AI companies in Canadian courts, including several proposed class actions. While the courts are yet to decide any of the claims on their merits, several recent decisions addressed procedural issues that provide important guidance for potential litigants. The following are some of the noteworthy decisions that were rendered in 2025.

Toronto Star Newspapers Limited v. OpenAI Inc., 2025 ONSC 6217

A coalition of Canadian media companies, including the Toronto Star, The Globe and Mail, Postmedia, and CBC (together, the Media Companies), commenced an action in Ontario for copyright infringement, among other causes of action, against the US-based company OpenAI, Inc. and related entities (together, OpenAI). Generally, the Media Companies assert that OpenAI scraped copies of their works from the Internet to train large language models, among other allegations.

In the first decision of its kind dealing with foreign AI companies, the Ontario Superior Court of Justice (Commercial List) dismissed OpenAI's motion to stay or dismiss the action for lack of jurisdiction or on the basis that Ontario is the forum non conveniens.

The Court concluded that it had both subject matter jurisdiction over the claims asserted in the action and in personam jurisdiction over the defendants directly implicated in the alleged wrongdoing and their parent companies.

The Court concluded that it had inherent jurisdiction over the subject matter of the action.

With respect to in personam jurisdiction, the Court concluded it had jurisdiction over certain defendants, including OpenAI. It found there was a real and substantial connection between the copyright claims and Ontario. In reaching that conclusion, the Court relied on SOCAN v. Canadian Assn. of Internet Providers, 2004 SCC 45, which considered the right of communication to the public by telecommunication, and not the reproduction right. Based on that decision, the Court held that there will be a real and substantial connection to Ontario if the alleged "infringing conduct includes the use of copyrighted material that is sent (transmitted) from or through Canada (through scraping or training) or sending copyrighted material back into Canada (through either reproduction of copyrighted material or if the model itself constitutes a breach through its unauthorized reproduction of the copyrighted content)..." The Court found that the Media Companies' claims included such allegations, and therefore that it had in personam jurisdiction over certain defendants in relation to those claims.

The defendants also argued that the Canadian Copyright Act does not apply to activities that occur outside of Canada, based on the principle of territoriality. The Court declined to address that issue because it would go to the merits of the case and this was a procedural motion. Similarly, the Court declined to address the defendants' argument that the Media Companies' claims for breach of contract and unjust enrichment are pre-empted by the copyright claims, since that argument would also go to the merits of the case.

OpenAI was unable to rebut any of the presumptive connecting factors between the claims and Ontario, and did not establish that Ontario was a forum non-conveniens.

The defendants have appealed this decision and there will, indeed, be more developments on this case to come in 2026.

Doan v. Clearview AI Inc., 2025 FCA 133

Ms. Doan, a Quebec-based portrait photographer, asserted copyright and moral rights in the photographs she posts online. The respondent, Clearview AI Inc. (Clearview AI), is a US-based company (previously operated in Canada between 2019 and mid-2020) that uses web crawler programs to build a vast database of images predominantly for use by law enforcement and national security agencies.

Ms. Doan commenced an action alleging that Clearview AI engaged in widespread copyright and moral rights infringements by collecting, copying and storing images of faces taken in Canada without the consent of the individuals who took the images or hold copyright and/or moral rights in the images. She sought to certify the action as a class proceeding, with her as the representative plaintiff.

The Federal Court dismissed Ms. Doan's motion for certification. It held that Ms. Doan had failed to establish some basis in fact that the underlying action discloses an identifiable class of two or more persons. Specifically, the class definition would not enable putative class members to self-identify, and Clearview AI could not identify class members based on metadata in its system. In addition, Ms. Doan's alternative "query"-based method for identifying class members, which would require putative class members to submit queries to Clearview AI to confirm their class membership, was not appropriate.

On appeal, the Federal Court of Appeal remitted the matter to the Federal Court for reconsideration. It held that the Federal Court had erred by concluding that the proposed "query" method transformed the underlying action into an opt-in scheme and that it did not fully examine whether the evidence demonstrated a timely workable method to identify class members.

Robillard c. Meta Platforms, inc., 2025 QCCS 4131

The plaintiff, Anne Robillard, is a Quebec-based self-published novelist. In March 2025, the plaintiff filed an application in the Quebec Superior Court for authorization to commence a class action against the defendant, Meta Platforms Inc. (Meta Platforms), which operates Facebook and Instagram, among other platforms — on behalf of individuals who own copyright in works that were used by the defendant, without permission, to develop the defendant's large language model. Meta Platforms brought a motion for leave to file evidence to contest Ms. Robillard's application for authorization to commence a class action.

Meta Platforms principally sought, and was permitted, to file evidence comprising screenshots from Ms. Robillard's Facebook page and Instagram page, an affidavit from an employee that introduced the Terms of Service for Facebook and for Instagram, and Meta Platforms' commercial terms of use and products webpage, among other evidence.

In granting the motion, the Quebec Superior Court held that the contractual terms and conditions the defendant sought to adduce were not problematic because they contained neutral facts relevant to Ms. Robillard's underlying application for authorization to commence a class action. The Court also noted that Ms. Robillard did not contest the admissibility of the evidence but did contest the weight the evidence should be given by the Court when it is considering whether to authorize the class action.

Updates in Canadian AI Policy and Legislative Reform

Stakeholders Comment on Copyright in the Age of Generative AI

In May 2025, the Government of Canada released its What We Heard Report, which summarizes the comments it received as part of its Consultation on Copyright in the Age of Generative Artificial Intelligence.

Casey Chisick, Eric Mayzel, Jessica Zagar, Ronak Shah, and Claire Stempien commented on the What We Heard Report, here: Update from the Government of Canada on Issues of Copyright in the Age of Generative Artificial Intelligence.

Launch of AI Task Force

In September 2025, the Federal Minister of Artificial Intelligence and Digital Innovation announced the launch of an AI Strategy Task Force and a 30-day national sprint that will help shape Canada's approach to AI. The announcement stated, among other things, that the Task Force will seek advice from stakeholders on a broad range of AI-related themes, including:

• research and talent
• AI adoption across industry and governments
• commercialization of AI
• scaling Canadian AI champions and attracting investments
• building safe AI systems and strengthening public trust in AI
• education and skills
• building enabling infrastructure
• security of the Canadian infrastructure and capacity

The Cassels copyright team is closely monitoring these developments.

Online Enforcement: Site Blocking, Norwich Orders, and Other Developments

In 2025, the Federal Court and Federal Court of Appeal rendered several decisions relating to the enforcement of copyright on the Internet. The decisions address issues such as the scope of relief available in a website blocking order, the potential tenability of a defence of "misuse of copyright" relating to claims under the notice-and-notice regime, and the evidentiary requirements that a plaintiff must satisfy to obtain a Norwich order, among other issues.

Bell Media Inc. v. John Doe 1 (Soap2day), 2025 FC 133

The plaintiffs were several media companies that produce, own, and/or distribute popular motion pictures and television programs. The defendant, John Doe 1, operated an online piracy platform under the name "Soap2day," which provided unlimited and unauthorized access to thousands of motion pictures and television programs, including a large number of works owned by the plaintiffs.

The Federal Court granted default judgment and issued a site-blocking order requiring third-party internet service providers (ISPs) to prevent subscribers' access to websites and internet services associated with the piracy platform Soap2day and "copycat" websites.

The Court noted that this order expands upon the scope of site-blocking orders granted in earlier decisions. For example, in earlier decisions, the Court granted a "static" site-blocking order, which required ISPs to block certain domains specified in the order, as well as "dynamic" site-blocking orders, which allowed plaintiffs to require ISPs to block unauthorized streaming websites in "real time." Cassels has previously written about certain of those earlier decisions.¹

In this decision, the Court allowed the plaintiffs to add additional "copycat" websites to the scope of the order by filing a simplified motion with the Court. The Court was satisfied that this expansion was warranted because of the unique aspects of the Soap2day platform. For example, Soap2day does not use a subscription model but is instead supported by advertising revenue, making it more difficult to determine whether copycat sites are operated by the same people or are otherwise related. Thus, the form of order was appropriate to prevent what the Court described as a digital game of "whack-a-mole" that is otherwise necessary to disrupt traffic to copycat websites.

Bell Canada v. Millennium Funding, Inc., 2025 FCA 153

The appellants, Bell Canada and Bell Aliant (together, Bell) appealed the decision of the Federal Court that struck parts of its pleadings in an action brought against it by a group of film studios (together, Millenium). Generally, Millenium alleges that Bell's internet services were used to infringe copyright by illegally distributing their films by the BitTorrent peer-to-peer network. The main issue on appeal concerned whether Bell pleaded sufficient material facts with respect to the copyright misuse defence.

While the Court of Appeal upheld the lower court's decision to strike the allegations of misuse of copyright, it recognized the copyright misuse defence as potentially viable and allowed Bell the opportunity to amend its pleading. Casey Chisick, Kassandra Shortt, Eric Mayzel, Jessica Zagar, and Emma Baliat comment on this decision in further detail, here: The Tort of Misuse of Copyright: A Viable Defence.

This decision, and any subsequent decision that may follow after Bell amends its pleading, are likely to be pivotal in shaping the future of the doctrine of copyright misuse in Canada.

Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 461, 2025 FC 1378

On March 13 and November 10, 2025, the Federal Court released two decisions in Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 461, 2025 FC 1378, respectively. The decisions arise from an underlying action for copyright infringement pursued by the plaintiff media companies against the operators of unauthorized IPTV services operating under the SmoothStreams umbrella brand (the SSTV Services).

By way of background, in 2022, the Court granted the media companies a range of injunctive and other relief, including an Anton Piller order. The plaintiffs' efforts to execute the Anton Piller Order against the defendants, including the personal defendants Antonio Macciacchera (Antonio) and Marshall Macciacchera (Marshall), were unsuccessful. Antonio and Marshall were charged with contempt in July 2022.

In the March 2025 decision, the Court granted the plaintiffs' request, in part, for an interlocutory penalty for contempt on the personal defendants pending a Penalty Hearing. The Court required the personal defendants to deliver their passports to the registry of the Federal Court by no later than the outset of the Penalty Hearing, which the personal defendants consented to.

The November 2025 decision was issued following the personal defendants' penalty hearing. Chief Justice Crampton issued an order to incarcerate Antonio and Marshall for initial periods of four months and six months, respectively, for past acts of contempt, and for a further maximum period of five years less one day or until they comply with the interim order, and related relief. In view of principles that guide sentencing analyses (including parity, gravity of the contempt, deterrence etc.) the Chief Justice held that a sentence "towards the high end of the spectrum" was appropriate.

Voltage Pictures, LLC v. Salna, 2025 FCA 131

Voltage Pictures, LLC and related production companies (together, Voltage), appealed the Federal Court's decision — for a second time — to dismiss its motion for certification of a reverse class action against 874 unidentified individuals alleged to have committed copyright infringement through online file-sharing.

By way of background, Voltage has sought to certify the proposed reverse class proceeding since 2019. Voltage's proposed litigation plan contemplated using the notice-and-notice regime in sections 41.25 and 41.26 of the Copyright Act as the means for internet service providers (ISPs) to provide notice of the class proceeding to class members, communicate with class members, and facilitate the opt-out process. In 2023, the Federal Court dismissed Voltage's motion for certification, concluding, among other deficiencies, that Voltage's litigation plan failed to set out a workable method of advancing the proceeding because its proposed use of the notice-and-notice regime was contrary to subsection 41.25(2) of the Copyright Act.

The Federal Court of Appeal agreed and concluded that subsection 41.25(2) of the Copyright Act should be interpreted narrowly and should not be used primarily for a litigation purpose. The primary purpose of the notice-and-notice regime is to deter infringement and it cannot be used as a litigation tool or as part of a process to enforce copyright claims. The Federal Court of Appeal also affirmed that Voltage's proposed notice ran afoul of subsection 41.25(3) of the Copyright Act because it impermissibly requested personal information or payment which cannot be part of a notice of claimed infringement.

Hellboy Productions, Inc. v. Doe #1, 2025 FC 1766

Hellboy Productions, Inc. (Hellboy) alleged that more than 2,400 unknown defendants had infringed copyright in its film, Hellboy: The Crooked Man through online file sharing. Hellboy applied for a Norwich order to compel several non-party Internet Service Providers (ISPs), including Telus, Cogeco, and Bell, to disclose the names and addresses associated with certain internet protocol (IP) addresses associated with alleged acts of infringement.

The Federal Court dismissed the motion. First, Hellboy failed to establish a bona fide claim of copyright infringement because it failed to prove that copyright subsisted in the film at issue and that it is the owner of such copyright. Hellboy sought to rely on the statutory presumption of subsistence and ownership in section 34.1 of the Copyright Act, but the Court held that the presumption is not available on a motion for a Norwich order in respect of unknown defendants. Unable to rely on the presumption, Hellboy failed to present sufficient evidence to establish copyright subsistence and ownership.

Second, the Court was not convinced that the non-party ISPs were more than innocent bystanders. The Court noted certain deficiencies in Hellboy's affidavit evidence on the issue of whether the ISPs were involved in the matter in dispute.

The Court dismissed the motions without prejudice, permitting Hellboy to reapply with additional evidence.

Yelda Haber Ve Gorsel Yayincilik A.S. v. GLWiZ Inc., 2025 FC 1107

The plaintiff, Yelda Haber Ve Gorsel Yayincilik A.S, is one of Turkey's largest broadcasters. It creates, owns, broadcasts, and streams original Turkish television series and broadcasts a free-to-air live television channel within Turkey. The defendants operate a popular internet protocol television (IPTV) streaming service, from their premises in Canada.

The plaintiff commenced an action alleging that the defendants infringed and induced, enabled, or authorized others to infringe, the plaintiff's copyright in 22 of its programs, which totalled nearly 3,000 episodes, and its live TV channel, between 2018 and 2022. Shortly before trial, the defendants conceded liability and the Court was left to decide only the issue of remedies at trial.

The Court concluded that: (1) the plaintiff was entitled to a statutory damages award of $2,000 per episode of each program plus $10,000 for the live TV channel, for a total award of $5,958,000; (2) no punitive damages were warranted; and (3) the plaintiff had not demonstrated that it is entitled to a wide injunction.

The Court ordered a permanent injunction enjoining the defendants from dealing in the programs at issue and the live TV channel and ordered the deletion and destruction of all copies of the programs. However, the Court declined to order a wide injunction that would cover an additional 68 programs.

The plaintiff argued that a wide injunction was necessary because it was likely the defendants would continue its infringement of copyright in the plaintiff's works. The defendant argued that infringement had ceased and concern of hypothetical future infringements was not a sufficient basis to grant a wide injunction. The Court dismissed the request for a wide injunction because the plaintiff failed to establish that it is the owner of copyright in the 68 additional programs, which is a requirement for the granting of a wide injunction under paragraph 39.1(1)(a) of the Copyright Act.

The decision illustrates certain complexities in enforcement actions involving mass copyright infringements online and serves as a reminder of the evidence required to obtain a wide injunction under the Copyright Act.

Decisions Highlighting the Importance of Evidence

Several Federal Court decisions in 2025 reiterate the importance of presenting sufficient evidence to prove copyright subsistence and ownership, and that statutory presumptions of subsistence and ownership are not necessarily available in all cases. The following decisions are a few examples from 2025 that exemplify these important principles.

Matsumoto v. Canuck Eats, 2025 FC 2017

The plaintiffs, Shoichi Matsumoto (Matsumoto) and Shen Chen (Chen), are professional photographers and content creators. Their content includes images of food that are displayed on their own blogs and various social media platforms. The plaintiffs claimed that the defendant infringed copyright in its photographs by reproducing them on its food delivery service website without their authorization. The plaintiffs further alleged that the defendant infringed their moral rights of attribution and to the integrity of the works. The defendant did not defend the action and the plaintiffs moved for default judgement.

The Court dismissed Chen's motion due to his failure to prove that he is the owner of copyright in the relevant photographs. Although Chen swore an affidavit claiming to be the owner of copyright, by virtue of having taken the photographs and never having assigned copyright, information on his website tended to contradict his evidence by suggesting that copyright is owned by a company that operates his blog. The Court found Chen did not have standing to pursue the claim because there was insufficient evidence that Chen was the owner of the copyright or derived any right, title, or interest in the work by assignment or grant in writing from the owner.

With respect to Matsumoto, the Court accepted that he is the owner of copyright in the relevant photographs. He swore an affidavit to that effect and his affidavit evidence was consistent with information on his blog. Based on screenshot evidence, the Court found that the defendant infringed copyright in Matsumoto's photographs by reproducing them on its website without his authorization.

The Court dismissed both plaintiffs' claims for moral rights infringement.

Dermaspark Products Inc. v. Danielle Ipince, 2025 FC 946

The plaintiffs, Pollogen Ltd. (Pollogen) and Dermaspark Products Inc., are the manufacturer and exclusive Canadian distributor of a facial treatment device and related products, respectively. They commenced an action arising from the defendant's use and promotion of counterfeit devices and products.

The Court granted default judgment on the plaintiff's trademark claims but dismissed the copyright claims, describing the allegations in the statement of claim as bald and unsupported. The statement of claim alleged that the images were authored by an employee of Pollogen and that Pollogen owned copyright in the images. While Pollogen filed evidence to support its motion, the Court found the evidence was limited to a verbatim recitation of the exact words in the statement of claim and held that this evidence was insufficient to establish the plaintiffs' claims.

McQuaig v. Enbridge Gas Inc., 2025 FC 1439

The plaintiff, Adam McQuaig, commenced an action against the defendant, Enbridge Gas Inc. (Enbridge), alleging Enbridge infringed copyright in Mr. McQuaig's computer software program, EVC Prover, which is used for accreditation of natural gas meters. In the statement of claim, Mr. McQuaig claimed to be the sole author and first owner of copyright in EVC Prover.

The Court identified three iterations or components (each, a Version) of the EVC Prover and found that it was plain and obvious that Mr. McQuaig was not the owner of copyright in any of those Versions.

• With respect to Version #1 (EVC Prover software, and modifications and enhancements prior to November 2019), the statement of claim pleads that Mr. McQuaig assigned his copyright in EVC Prover to a numbered company he incorporated (the Numbered Company) in October 2019. As a result, Mr. McQuaig was not the owner of copyright in the original version of EVC Prover.

• Regarding Version #2 (New Features – November 2019 until June 2021), the statement of claim alleged that Mr. McQuaig authored the Version pursuant to a services agreement with Enbridge. However, that services agreement was between Enbridge and Mr. McQuaig's numbered company, not Mr. McQuaig in his personal capacity. The statement of claim did not allege facts to support a conclusion that Mr. McQuaig authored Version #2 other than in his capacity as an employee of the numbered company, or that Mr. McQuaig was the first owner of copyright in Version #2.

• Finally, with respect to Version #3 (Enbridge Modifications – June 8, 2021 to May 3, 2023), Mr. McQuaig authored that Version as an employee of Enbridge. The Court concluded that Enbridge was therefore the first owner of copyright, noting the absence of any allegation in the statement of claim of an agreement to the contrary.

The Court did not grant leave to amend because the plaintiff's lack of ownership of copyright was not a defect that could be cured by amendment.

ITP SA v. CNOOC Petroleum North America ULC, 2025 FC 684

ITP SA (ITP) commenced an application against CNOOC Petroleum North America ULC (CNOOC) for copyright infringement after CNOOC used a promotional image of a pipe-in-pipe system in a regulatory presentation.

CNOOC argued that ITP had tendered insufficient evidence to establish that one of its employees had authored the ITP Image and therefore that ITP, as the employer, owned the copyright in the image. The Court agreed and dismissed the application because ITP failed to prove ownership of the impugned image.

Eric Mayzel and Steven Henderson comment on the decision in ITP SA v. CNOOC Petroleum North America ULC, 2025 FC 684 further, here: Federal Court "Pipes" Up in Copyright Case Over Pipeline Drawing.

The decision is an important reminder that a corporate litigant cannot rely on a statutory presumption to establish that it is the author of a work. It must provide direct evidence of authorship, ownership, and subsistence of copyright. The decision also provides a helpful review of Canadian jurisprudence regarding when an implied licence might be found to exist to permit a person to use architectural drawings and other such works in carrying out maintenance, repairs, and renovations of construction projections.

Decisions and Developments Involving Core Copyright Principles

In 2025, several decisions provided important reminders and guidance on core copyright principles, such as originality, first ownership of works created in an employment context, and the framework for assessing substantial similarity. The following decisions are a few examples from 2025 that exemplify these important principles.

Navtech Inc. v. Chantier Davie Canada Inc., 2025 FC 833

The plaintiff, Navtech Inc. (Navtech), alleged the defendants breached a licence agreement by failing to attribute Navtech as the designer of plans and designs related to the conversion of a ship. The plaintiff claimed that, by failing to comply with the terms of the licence agreement, the defendants' actions constituted copyright infringement.

The Court granted summary judgment dismissing the claim of copyright infringement. While the Court accepted that a particular act can potentially constitute both a breach of a licence agreement and copyright infringement, that was not the case here. Any copying of the design was authorized under the licence agreement. A breach of the attribution requirement in the licence agreement could only give rise to a claim for moral rights infringement, which the corporate plaintiff could not pursue because it was not the author of the work.

The decision is an interesting reminder that, while a breach of a licence agreement may potentially ground an action under the Copyright Act, the nature of the contractual breach may be relevant to the scope of the claims available under the Copyright Act.

Governing Council of the University of Toronto v. Easy Group Inc. (Easy Education), 2025 FC 1728

This appeal concerns an order by the Motions Judge in a copyright case involving the University of Toronto and three of its professors against a tutoring company accused of the unauthorized reproduction of the plaintiffs' course materials.

Before discovery, the plaintiffs provided a "Draft Infringement Table," which identified page numbers from the plaintiffs' course materials and the corresponding pages on which they alleged that the materials appeared in the defendants' course packs. On examination for discovery, the plaintiffs refused to answer questions asking them to, among other things, match, element-by-element, the portions of the purportedly infringed document with portions of the purportedly infringing document.

The Motions Judge dismissed the defendants' motion to compel the plaintiffs to answer those questions. The Motions Judge held that they were improper questions of law because they ask for a position on a legal issue or argument. The Motions Judge further noted that the test for determining whether a substantial part of a work has been copied involves a qualitative and holistic assessment and that Courts will not look at isolated passages.

The defendants appealed the order of the Motions Judge to the Federal Court, which upheld the order. The Court concluded that, although the questions at issue appeared factual, their purpose was to determine the plaintiffs' legal theory of infringement, making them inherently legal in nature and thus improper questions on discovery.

The Court also rejected the defendants' argument that the Motions Judge had ignored their fair dealing defence, which requires a consideration of the amount of the plaintiffs' works taken. The Motions Judge had been aware of the fair dealing defence and was alive to the law that relevance is determined by the pleadings. In any event, the Motions Judge cannot have erred by failing to consider that argument because the defendants had not raised it on the motion.

Jessica Zagar and Eleanor Wilson acted on behalf of the Governing Council of the University of Toronto.

Cavan Specialty Advertising Ltd. v. Les Promotions Universelles Inc., 2025 FC 205

Cavan Speciality Advertising Ltd. (Cavan) brought an action against the defendant, Les Promotions Universelles Inc. (LPU) for copyright infringement alleging LPU infringed the plaintiff's copyright by creating and selling hoodies bearing a drawing of a contemporary version of the "Rosie the Riveter" image that was similar to their own design.

By way of background, Cavan created a design inspired by the iconic "Rosie the Riveter" image, featuring diverse women in the Rosie pose, accompanied by images of roses, wheat stalks, and the phrase "Sisterhood – Solidarité féminine" (the Cavan Design). Years later, LPU was hired by a trade union to create a design for hoodies and created a design featuring elements similar to the Cavan Design. LPU brought a motion for summary judgment and argued that its work (the LPU Design) did not reproduce a substantial part of the Cavan Design because the similarities between them involved only generic or public domain elements, such as the Rosie pose, roses, wheat stalks, and common words like "sisterhood."

The Federal Court dismissed LPU's motion for summary judgment, providing an interesting analysis on copyright in works that incorporate non-protectable elements.

The Court concluded that although individual components — such as the Rosie figure and feminist symbols — are drawn from the public domain, such elements cannot be eliminated from the infringement analysis. The Court noted that a particular combination of otherwise public or generic material can constitute an original work, and "can form part of the substantial part reproduced [in another work] where the specific combination of these elements has been copied."

The Court found that the cumulative similarities between the two works — including the specific combination of diverse Rosies, the sleeve tattooed contemporary Rosie, the roses, and the tagline "Sisterhood – Solidarité féminine" — raised a genuine issue of copyright infringement for trial. While slogans are generally not protected, the Court observed that "solidarité féminine" was an unusual translation, supporting Cavan's claim of originality.

Nexus v. Krougly, 2025 ONSC 1346

The plaintiff, Nexus Solutions Inc. (Nexus) is a software development firm. It alleged that a former employee, Vladimir Krougly (Vlad), developed a competing software program called Limedas, while employed by Nexus, using Nexus's proprietary information. The evidence showed that Vlad had surreptitiously developed Limedas during his employment with Nexus, which he then marketed to potential clients of Nexus upon his departure. The only issues before the Court, however, centered on copyright law. Specifically, did Limedas infringe copyright in the Nexus' software, and had Vlad authored Limedas in the course of his employment with the Nexus under a contract of service, such that Nexus is the first owner of copyright in Limedas pursuant to section 13(3) of the Copyright Act?

On the issue of infringement, the Court referred to Cinar Corporation v Robinson, 2013 SCC 73 [Cinar] for the proposition that the substantiality analysis requires a qualitative and holistic approach. Courts will look at the two works as a whole and not at isolated passages. Notably, however, in Cinar, the Supreme Court noted the possibility that a more "reductive" analysis might be useful when assessing substantial similarity as between computer programs. The Court in Nexus v. Krougly does not appear to mention that aspect of the Cinar decision and it is unclear whether the Court considered it.

In any event, one of the plaintiff's experts acknowledged on cross-examination that the source code of the two programs was not the same. The algorithms used were dissimilar. The structures of the files were dissimilar. Although the data in these systems originates from sensors, the data was dissimilar. In his opinion, there was no evidence of copying. Based on that evidence, the Court found that Limedas did not reproduce a substantial part of the skill and judgment expressed in Nexus' software. The Court further noted that the similarities between the programs were in respect of non-protectable ideas, such as the intended functionalities of the programs.

The Court also found that Vlad had not authored contributions to Limedas in the course of his employment under a contract of service with Nexus. The evidence showed, among other things, that Vlad had developed his contributions during his employment with Nexus, but on his own time, and for the most part not using Nexus' resources. Nexus was also a "demanding employer" that prohibited developers from working on any software projects without its approval. Had Nexus known that Vlad had been developing Limedas, it would have terminated his employment. Thus, it could not be said that Vlad's development of Limedas was integral to his employment with Nexus. In addition, Nexus did not assume any financial, organizational, or other such risks involved in the creation of Limedas. For those reasons, although Vlad developed Limedas during his employment with Nexus, he had not developed it in the course of his employment, under a contract of service, in the sense contemplated by section 13(3) of the Copyright Act. The Court therefore held that Vlad was the first owner of copyright in Limedas. The Court summarized its conclusions as follows:

[369] With considerable reluctance, I am persuaded that Nexus is not entitled to a proprietary remedy in the circumstances of this case under copyright law. Nexus did not bargain for, nor expend resources that led to the development of Limedas by Vlad or Serge. Limedas was not developed in the course of Vlad's employment, although he developed it while he was employed at Nexus.

[370] Although I acknowledge that this is a harsh result based on my view of the Defendants' conduct in this case, to find otherwise would upend the purposes of copyright law—to allocate risk and reward to the person that actually does the creating. It must be kept in mind that there was no copying here according to the Plaintiff's expert, Mr. James. The purpose of copyright law is not, in my respectful opinion, to punish bad actors simply because their actions may run afoul of their duties towards their employers. There are other remedies available to an aggrieved employer.

Gold Line Telemanagement Inc. v. Ereele GmbH, 2025 FC 904

The plaintiffs, Gold Line Telemanagement Inc., GLWiZ Platform, and Ava Telecom Ltd., operate an Internet Protocol Television platform (IPTV). Prior to the litigation, the defendants accused the plaintiffs of offering their films on the IPTV platform without authorization.

The plaintiffs commenced the action seeking a declaration that copyright did not subsist in the films because they were not produced in a Berne Convention country, among other relief. The defendants initially defended the action and brought a counterclaim but later stopped participating in the proceeding. The plaintiffs moved for summary judgment.

The Court granted partial summary judgment, concluding that copyright does not subsist in the films. The Court noted that the subsistence and enforceability of copyright in Canada is "wholly dependent on the ability of a party to satisfy the terms of the Copyright Act," citing Fox Restaurant Concepts LLC v 43 North Restaurant Group Inc, 2022 FC 1149. The Court held that the non-participating defendants failed to establish copyright subsistence, for the following reasons:

1. The defendants were not permitted to rely on the presumptions of copyright subsistence and ownership in section 34.1 of the Copyright Act because their pleading had been struck.
2. Under section 5(1) of the Copyright Act, copyright in a cinematographic work subsists in Canada only if:
   a. the author, at the date of creation, was a resident in a treaty country;²
   b. the maker of a cinematographic work, at the date of creation, was a corporation headquartered in a treaty country or a citizen or resident of a treaty country; or
   c. the conditions in paragraph 5(1)(c) of the Copyright Act have been met in relation to a published work, concerning the first publication of the work having occurred in a treaty country.

The defendants failed to provide evidence satisfying any of these conditions. As a result, the Court declared that copyright did not subsist in the films under the Copyright Act and could not be enforced.

"Live Forever": Ownership and Usage of Concert Photos

2025 marked the year of the Oasis revival, as the band kicked off the North American leg of their long-awaited reunion tour. Their initial shows in the UK and Ireland thrilled fans, but photojournalists were less impressed.

The band's management imposed a controversial condition: photographers could shoot the shows only if they agreed to a 12-month limit on the use of their photos. In response, the News Media Coalition announced that several of its members, including Getty Images, Reuters, and AFP, were suspending coverage of the tour.

The News Media Coalition stated that Oasis' restrictions "pose[d] challenges to the preservation of cultural and historical records and may undermine the public's access to independent journalism."

The dispute illuminated a long-standing issue in the live music industry: ownership and usage of concert photos and the restrictions that photographers accept in exchange for access.

Stephen Henderson and Rounaq Khoja comment on this topic further, here: "Live Forever": Ownership and Usage of Concert Photos.

A Spoon by Any Other Name: Supreme Court of Canada Denies Leave to Appeal in Room Full of Spoons Saga

2025 may mark the end of the Room Full of Spoons litigation saga.

In May 2025, the Supreme Court of Canada denied leave to appeal from a judgment of the Federal Court of Appeal in the latest chapter of Tommy Wiseau's Room Full of Spoons litigation saga. The Federal Court of Appeal had affirmed an order dismissing Mr. Wiseau's action for breach of section 41.1(1) of the Copyright Act — which deals with circumvention of technological protection measures (TPMs) — on the ground of cause of action estoppel. Mr. Wiseau's action for circumvention of TPMs, and his previous unsuccessful action for copyright infringement, did not raise separate and distinct causes of action.

With the closing of this latest chapter, Eric Mayzel revisits the Federal Court of Appeal's dismissal of the action for circumvention of TPMs, from which leave to appeal to the Supreme Court has been denied, here: A Spoon by Any Other Name: Supreme Court of Canada Denies Leave to Appeal in Room Full of Spoons Saga.

Footnotes

1 See the Cassels comments addressing Canada's first copyright site-blocking order and first dynamic site-blocking order.

2 The Copyright Act defines "treaty country" to mean a Berne Convention country, UCC country, WCT country or WTO Member, which are defined terms meaning countries that are party to certain international conventions, treaties, or organizations.

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