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Recent Copyright Developments - summer 2023

In this blog entry we deal with copyright developments in the last few months


The Ontario Court of Appeal has refused to extend the right of privacy to cases where the defendant’s negligence in storing information led to a privacy breach. Owsianik v. Equifax Canada Co 2022 ONCA 813


The Federal Court has announced the launching of a pilot project creating a specialized Chamber of the Court to hear intellectual property matters with a subspeciality for copyright.

Under the Federal Court Rules the court may order the trial of an issue or that issues in a proceeding be determined separately. This rule is frequently used to bifurcate the issues of infringement and damages in patent actions. Such orders are made less frequently in actions for copyright infringement. Rallysport Direct LLC v. 2424508 Ontario Ltd., 2019 FC 1524 and see GE Renewable Energy Canada Inc. v. Canmec Industriel Inc. 2022 FC 1720.


Effective March 1, 2023, the final version of the Copyright Board Rules of Practice and Procedure have been published. SOR/2023-24. The objective of the Rules is to implement the new statutory framework and modernized mandate set out in the amended Copyright Act; address specific issues raised by the INDU Committee and by stakeholders regarding the timeliness, efficiency, predictability and transparency of Board procedures; and detail how the Board will sequence its proceedings to respect the timelines for decision-making introduced in the Time Limits in Respect of Matters Before the Copyright Board Regulations.


The Rules replace the existing Model Directive, provide clearer guidance to parties on how to engage with the Board, and establish specific requirements for their participation in tariff-setting proceedings. These requirements relate to the timing of filing and service of documents, the format of documents and exhibits, as well as the confidentiality and choice of language of communication.


Violating a Protective Order is a serious matter. It can cause harm to the party whose confidential information was unlawfully disclosed. It can also have very grave consequences for the party and the persons who breached the Order. They may be subject to contempt of Court proceedings, and liable to fines or imprisonment. The party in breach has a clear duty to “make every effort” to prevent further disclosure of the information it unlawfully disclosed. How this is achieved is its own business, but it must provide all relevant facts to the Producing party, including confirmation of how it has fulfilled its obligation and, if any element cannot be met, to disclose the efforts it made and why they have violated the Order. Molo Design Ltd. v. Chanel Canada ULC 2023 FC 140


In French v The Royal Canadian Legion 2023 FC 749 the plaintiff asserted a copyright relating to a stuffed animal modelled after a Dalmatian dog with black-centered red poppies in place of the Dalmatian’s usual simple black spots. The copyright subsisted in the toy. The Judge found there was a functional and practical use for the toy as it was a plush toy made to be played with by children. As such the toy was a useful article of which more than fifty had been produced and subsection 64(2) applied.


In Videotron Ltd v. Konek Technologies Inc. 2023 CAF 92 the court summarized the effect of paragraph 2.4(1)(b): “an intermediary who is in fact content to act as a "conveyor ", unaware of the content and who allows others to communicate without having an impact on the content, will be considered an "agent" and as such, will benefit from the protection conferred by s. 2.4(1)(b) of the Act and will therefore not be unfairly caught by the definition in s. 3(1)(f).


It was also found that the above presumption of authorization can also be rebutted as a result of the relationship between the alleged author of the authorization and the persons who infringed the copyright. No particular relationship must be shown.


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) 597-3371

Fax: (416) 597-3370


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