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Daniel O’Connor for the Plaintiff, Catherine Leuthold
Christian Leblanc for the Defendants/Plaintiffs, Canadian Broadcasting Corporation, et. al
At trial the Plaintiff, Catherine Leuthold (“Leuthold”) was successful in obtaining judgment against the Defendants, Canadian Broadcasting Corporation, et. al (“CBC”). She was awarded damages and other remedies in the amount of US $20,000 resulting from the admitted infringement of her copyright in five images of the terrorist attack of September 11, 2011. Leuthold had claimed $22 million for the infringement. She appealed the award of damages.
The CBC entered into negotiations with Leuthold to obtain a license to use five images taken of the terrorist attack of September 11, 2011 in a documentary it was producing. A license (the “Stills License”) was eventually entered into which granted the CBC the right to “broadcast the images on Canadian television for one broadcast on CBC’s Network & Regional TV stations”. The documentary was broadcasted on Newsworld, a CBC network, on September 10, 2002. The images were to be removed from the documentary for future broadcasts but were only removed from some versions of the documentary but not others. As a result, the images were rebroadcast a number of times in the period between 2003 and 2004. At trial, the CBC conceded that it infringed the copyright of Leuthold on six broadcasts aired between September 2002 and September 2004. CBC took issue with the amounts claimed by Leuthold for the infringing broadcasts.
One issue in the appeal was whether Newsworld was covered by the Still License and thus whether its broadcast of the images on September 10, 2002 were an infringement of Leuthold’s copyright. The trial judge held that the Stills Licence included the right to broadcast images on Newsworld. Although Newsworld is a separate legal entity from the CBC, the Court held that Leuthold had not sued Newsworld for the broadcast but only sued the CBC such that she did not view them as a separate legal entity but rather as part of the CBC. The further evidence at trial was that CBC routinely included Newsworld when it was clearing rights for broadcast. Leuthold relied on the Ontario International Sale of Goods Act to exclude Newsworld from the license by categorizing it as a contract for sale of goods between herself and the CBC. The Court of Appeal held that “a license agreement is not a sale of goods; no property in the good is transferred as a result of a license agreement” and further that “an intangible such as an interest in copyright is not a good”. As a result, Newsworld was properly included in the Stills License and its broadcast of the images was not an act of infringement of Leuthold’s copyright.
In determining the quantum of damages the Court of Appeal had to determine how many acts of infringement there were. Leuthold in her calculation of damages relied on paragraph 2.4(1)(c) of the Copyright Act as a basis for her position that each transmission to each BDU within a network would be an act of infringement. The Court of Appeal disagreed and instead read paragraph 2.4(1)(c) as providing that there is a single network wide infringement by the distribution of a network signal incorporating a protected work to a BDU and the subsequent communication of that work to subscribers. The Court of Appeal held that such a reading of paragraph 2.4(1)(c) “moves in the direction of technological neutrality in that the number of infringing acts does not vary according to the number of intermediaries in the transmission chain”. The Court further held that “the measure of damages may depend upon the number of viewers of the work, which has a rational connection with compensation, unlike the number of intermediaries, which does not”. Justice Pelletier agreed with the Trial Judge’s view that each retransmission was not a separate act of infringement and his conclusion that as such there were only 6 acts of infringement.
Leuthold on appeal sought an accounting of profits of the BDUs. This was not sought in her statement of claim and was raised for the first time on appeal. The Court of Appeal held that as the BDUs are not party to the litigation it had no jurisdiction to make an order against them. The Court also held that it was “not open to Ms. Leuthold, on appeal, to seek a remedy which she did not seek in the Federal Court”.
Appeal dismissed.
By: Rosamaria Longo, Gardiner Roberts LLP