Avoiding Confusion concerning Presumptions about Copyright

A decision of the Federal Court emphasizes the importance of clinical precision in asserting a claim for copyright infringement. ITP SA v. CNOOC Petroleum North America 2025 FC 684

The Facts

The Applicant is a French corporation specializing in designing and making “pipe-in-pipe” (PIP) systems for industrial projects. Between 2012 and 2014, it contracted with Nexen Inc., the predecessor of the Respondent, to supply PIP technology and related services for the work Nexen Inc. was to carry out on the Kinosis K1A oil sands pipeline (K1A Pipeline) in Alberta. 

In mid-2015, a failure occurred, apparently in the Applicant’s technology installed on the K1A Pipeline, leading to a shutdown and later repair efforts. By 2017, the Respondent initiated legal proceedings in Alberta against several entities involved in the pipeline’s design, construction, and related work, including an action against the Applicant.

In September 2016 the Applicant created an illustration depicting a cross-section of its proprietary PIP system (the Image). The Image shows an inner pipe surrounded by insulation materials, electrical wiring, anti-corrosion coatings, and other components arranged concentrically within an outer pipe. The Applicant’s corporate logo was reproduced in the Image. The Image was originally published on the Applicant’s website for marketing purposes and was also used in brochures and presentations to explain the general concept behind its PIP systems.

 In 2018, the Respondent sought regulatory approval from the Alberta Energy Regulator for the replacement of the failed pipeline. This replacement involved installing a new PIP system constructed by a different contractor. As part of its application, the Respondent gave a presentation to the regulator on September 13, 2018. One of the slides contained a PIP cross-section image that was substantially similar in appearance to the Image.

The Image and the image in the AER Presentation are reproduced below:

The Application 

The Applicant brought an application in the Federal Court claiming infringement of the copyright in the Image. The Respondent disputed the application which went on to a hearing.

Preliminary issues asserted by the Respondent relating to an alleged breach of the implied undertaking and the applicability of the three-year limitation period prescribed by the Copyright Act were dismissed.

The Court then considered whether the Applicant had proven its case. The parties broadly agreed that an artistic depiction of an industrial product, such as the Image, could qualify as a copyrightable work under the Copyright Act. They also accepted that the controlling legal framework for evaluating the existence of copyright, as determined by the Supreme Court of Canada, provides that a work must be “original,” meaning it originates from the author through the exercise of skill and judgment beyond trivial or purely mechanical effort. The dispute concerned whether Applicant provided enough admissible evidence to prove that the Image satisfies this standard and that it was created by an author with the requisite ties to a Berne Convention country.

The Applicant relied exclusively on affidavits from two senior corporate officers: Both affiants state they have been informed, or otherwise understand, that Mr. Thiolliere created the image as an employee of the Applicant while living in France. However, neither affiant claims direct personal involvement in, nor direct observation of, the substantive creative process.  Neither could specifically say how Mr. Thiolliere produced the illustration. The Applicant provided no explanation as to why obtaining an affidavit from Mr. Thiolliere was impossible or prohibitively difficult. 

The Applicant argued that it benefited from the presumption of authorship provided by subsection 34.1(1) of the Act, which states that “copyright shall be presumed, unless the contrary is proved, to subsist in the work… and the author… shall, unless the contrary is proved, be presumed to be the owner of the copyright”. 

The Judge was not convinced. First, the Federal Courts Rules, require that factual assertions in affidavits come from personal knowledge unless exceptions apply. There were no applicable exceptions, and the affidavits of two senior corporate officers failed to establish authorship under the Act.

Second, the absence of explanation as to why obtaining an affidavit from Mr. Thiolliere was impossible or prohibitively difficult, triggered an adverse inference against the Applicant.  Further the Applicant has presented no direct documentation—such as internal design files, engineering drafts, or dated records—linking Mr. Thiolliere to the creation of the Image. The absence of this evidence did not satisfy the obligation on the Applicant to establish copyright ownership by authenticated and admissible evidence, not unsupported claims or speculation. 

Finally, reliance on the presumption of authorship under subsection 34.1(1) failed because it overlooks the principle that this presumption does not extend to corporations. This point seems questionable since the Applicant was not asserting it was the author of the Image rather it was an individual, Mr. Thiolliere.

Based on this the Judge concluded that the Applicant had not shown that it owned a valid copyright in the Image.

Comment

The decision illustrates the importance of presenting the necessary admissible evidence to support a claim for copyright infringement.

Unfortunately, the Judge’s conclusion about the presumption does not seem correct on the assumption that that the Applicant asserted the author was Mr. Thiolliere. If the presumption applied the onus would be on the Respondent. Presumably the Respondent presented evidence to question the subsistence of copyright in which case the presumption would be rebutted.

If you have questions, please contact me at mckeown@gsnh.com.

John McKeown

Goldman Sloan Nash & Haber LLP

480 University Avenue, Suite 1600

Toronto, Ontario M5G 1V2

Direct Line: (416) 597-3371Fax: (416) 597-3370

Email: mckeown@gsnh.com

These comments are general in nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.

A version of this article originally appeared in the Law360 Canada published by LexisNexis Canada Inc.