Leuthold v. Canadian Broadcasting Corp. et al., (2014) 462 N.R. 181 (FCA)

• Judge: Pelletier, de Montigny (ex officio) and Mainville, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 25, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 462 N.R. 181 (FCA);2014 FCA 173

Leuthold v. CBC (2014), 462 N.R. 181 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2014] N.R. TBEd. JL.009

Catherine Leuthold (appellant) v. Canadian Broadcasting Corporation et al. (respondent)

(A-330-12; 2014 FCA 173; 2014 CAF 173)

Indexed As: Leuthold v. Canadian Broadcasting Corp. et al.

Federal Court of Appeal

Pelletier, de Montigny (ex officio) and Mainville, JJ.A.

June 27, 2014.

Summary:

Leuthold, a photo journalist, sued the Canadian Broadcasting Corp. (CBC) and a director of CBC News for copyright infringement, for using her photographs in a documentary without permission. She claimed damages of $21,554,954.25.

The Federal Court, in a decision reported at 413 F.T.R. 162, allowed the action and awarded damages of $19,200. The court ordered the defendants to deliver up all offending material. The defendants sought directions on costs.

The Federal Court, in a decision reported 420 F.T.R. 142, dealt with the costs issues accordingly. Leuthold appealed. The respondents brought a motion to obtain security for costs.

The Federal Court of Appeal, per Noël, J.A., in a decision reported 444 N.R. 260, denied the motion. The appeal on the merits proceeded.

The Federal of Appeal dismissed the appeal.

Editor's Note: A costs appeal is reported 462 N.R. 191; 2014 FCA 174.

Contracts - Topic 7433

Interpretation - Ambiguity - Contra proferentem rule - [See first Copyright - Topic 3062 ].

Copyright - Topic 3

General - Copyright Act - Interpretation - [See second Copyright - Topic 3436 ].

Copyright - Topic 3062

Licences - Licence statements - Interpretation - On October 7, 2002, the plaintiff retroactively licensed the Canadian Broadcasting Corp. (CBC) to incorporate five photographs into a documentary, "As the Towers Fell", and to broadcast those "on Canadian television for one broadcast on CBC's Network & Regional TV stations" - The production originally aired on September 10, 2002, on CBC's main channel and on CBC's speciality service Newsworld in all time zones - The plaintiff sued for copyright infringement, claiming that the licence covered "one broadcast" only (i.e., one time zone and not on Newsworld) - The Federal Court interpreted the licence and found no copyright infringement - The plaintiff appealed, arguing that the trial judge erred in failing to apply the contra proferentum rule of construction to the licence - The Federal Court of Appeal dismissed the appeal - This was not a contract of adhesion and nor a case of unequal bargaining power - See paragraph 28.

Copyright - Topic 3062

Licences - Licence statements - Interpretation - On October 7, 2002, the plaintiff retroactively licensed the Canadian Broadcasting Corp. (CBC) to incorporate five photographs into a documentary, "As the Towers Fell", and to broadcast those "on Canadian television for one broadcast on CBC's Network & Regional TV stations" - The production originally aired on September 10, 2002, on CBC's main channel and on CBC's speciality service Newsworld in all time zones - The plaintiff sued for copyright infringement, claiming that the licence covered "one broadcast" only (i.e., one time zone and not on Newsworld) - The Federal Court interpreted the licence - The court held that the licence included Newsworld and the right to broadcast in all time zones to affiliates and regional television stations - Consequently, the September 10, 2002, broadcasts did not infringe on the plaintiff's copyright - The plaintiff appealed - The Federal Court of Appeal dismissed the appeal - See paragraphs 22 to 32.

Copyright - Topic 3436

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - [See Copyright - Topic 4497 ].

Copyright - Topic 3436

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - The Federal Court of Appeal interpreted s. 2.4(1)(c) of the Copyright Act, dealing with communications to the public by telecommunication - The court stated that "... 2.4(1)(c) legislates that the distribution of a network signal incorporating a protected work to BDUs [broadcasting distribution undertakings] and the subsequent communication of that work to subscribers is but a single network-wide infringement in which each participating BDU is jointly and severally liable along with the network. In that way, all those who benefit from the communication of the work share in the liability for compensating the rights holder, subject to whatever arrangements may be in place between them. This reading of paragraph 2.4(1)(c) of the Act 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 ... There is one act of infringement whether the work is communicated to the public via one BDU or via hundreds of them. 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 ..." - See paragraphs 38 to 40.

Copyright - Topic 4497

Infringement of copyright - Acts constituting an infringement - Photographs - A Canadian Broadcasting Corporation (CBC) documentary, "As the Towers Fell", incorporated photographs taken by the plaintiff - The CBC admitted to broadcasting the production on its specialty service Newsworld without authorization from the plaintiff on six occasions - The production was also transmitted by CBC to all the Canadian broadcasting distribution undertakings (BDUs) that had the right to carry the Newsworld service - The plaintiff sued for copyright infringement, claiming that in addition to the six broadcasts acknowledged by the CBC, each transmission by the BDUs constituted a separate communication to the public that had to be compensated - The Federal Court held that the CBC was liable jointly and severally with the BDUs, but only for the six communications to the public that infringed on the plaintiff's copyright - The plaintiff appealed - The Federal Court of Appeal dismissed the appeal having regard to s. 2.4(1)(c) of the Copyright Act - See paragraphs 33 to 43.

Copyright - Topic 4553

Infringement of copyright - Acts not constituting an infringement - [See second Copyright - Topic 3062 ].

Copyright - Topic 4586

Infringement of copyright - Remedies - Damages - A Canadian Broadcasting Corporation (CBC) documentary, "As the Towers Fell", incorporated photographs taken by the plaintiff - The CBC admitted to broadcasting the production on its specialty service Newsworld to the public on six occasions without authorization (the photographs were viewed for 18 seconds) - The Federal Court awarded the plaintiff $3,200 US for each of the six unauthorized communications - The plaintiff appealed - The Federal Court of Appeal dismissed the appeal - See paragraph 44.

Copyright - Topic 4586

Infringement of copyright - Remedies - Damages - [See second Copyright - Topic 3436 and Copyright - Topic 4497 ].

Sale of Goods - Topic 101

Application of legislation - General - The Federal Court of Appeal stated that "A licence agreement is not a sale of goods; no property in goods is transferred as a result of a licence agreement. All that is conveyed is a right to use the property which is subject to the grantor's copyright in certain ways. Furthermore, an intangible such as an interest in copyright is not a good ..." - See paragraph 27.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 21].

Toronto (City) v. Cacciatore (2002), 161 O.A.C. 132 (C.A.), refd to. [para. 27].

Blank v. Canada (Minister of Justice) (2010), 409 N.R. 152; 2010 FCA 183, refd to. [para. 31].

Tele-Metropole Inc. v Bishop - see Bishop v. Télé-Métropole Inc.

Bishop v. Télé-Métropole Inc., [1990] 2 S.C.R. 467; 111 N.R. 376, dist. [para. 35].

Canadian Broadcasting Corp. v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. et al. (2014), 457 N.R. 156; 2014 FCA 84, refd to. [para. 35].

Entertainment Software Association et al. v. Society of Composers, Authors and Music Publishers of Canada, [2012] 2 S.C.R. 231; 432 N.R. 200; 2012 SCC 34, refd to. [para. 39].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 2.4(1)(c) [para. 36].

Counsel:

Daniel O'Connor, for the appellant, Catherine Leuthold;

Christian Leblanc, for the respondent, Canadian Broadcasting Corporation et al.

Solicitors of Record:

Daniel O'Connor, Pointe Claire, Quebec, for the appellant, Catherine Leuthold;

Fasken Martineau DuMoulin, Montreal, Quebec, for the respondent, Canadian Broadcasting Corporation et al.

This appeal was heard in Montréal, Quebec, on February 25, 2014, before Pelletier, de Montigny (ex officio), and Mainville, JJ.A., of the Federal Court of Appeal. The following judgment was delivered in Ottawa, Ontario, on June 27, 2014, by Pelletier, J.A.