The Appellant in Leuthold v. Canadian Broadcasting Corporation, 2014 FCA 173 is a professional photo-journalist from New York City who was present and took photos of the “September 11th” (or commonly known as “9/11”) terrorist attacks on the World Trade Center. The Canadian Broadcasting Corporation (“CBC”) wished to use five of her images captured that day for a documentary it was commissioning that focused on how 9/11 was seen through the eyes of journalists, cameramen, and photographers. However, due to an honest mistake admitted by the CBC, these images were accidentally broadcasted without her authorization on six occasions. In light of this admitted infringement of her copyright in these images, the Appellant claimed approximately US $20 million against the CBC.
The “honest mistake” in question stemmed from, in part, a misunderstanding of the scope of the consent granted by the Appellant to the CBC. More precisely, it was unclear as to whether her consent also applied to the broadcast of the documentary on CBC’s 24-hour news channel, Newsworld:
“ The issue is what is meant by the phrase “for one broadcast on CBC’s Network & Regional TV stations.” The Trial Judge approached the issue from the point of view of whether there was one communication to the public. Ms. Leuthold approaches it from the perspective of whether Newsworld is part of “CBC’s Network & Regional Stations”.” [emphasis added]
On this subject, the Federal Court of Appeal disagreed with the Trial Judge’s reasoning and instead ruled that Newsworld was not included in the rights granted by the Appellant. As it turns out, the Appellant had not even heard of Newsworld until after the licence was granted, and therefore it is unlikely that she would have granted such a right:
“ I am nonetheless unable to accept the Trial Judge’s reasoning to the extent that conclusions are drawn on the basis of what Ms. Leuthold failed to exclude from the Stills Licence. A licencee acquires only those rights which the licensor has granted it. The CBC acquired only those rights which are circumscribed by the phrase “to broadcast the Stills on Canadian Television for one broadcast on CBC’s Network & Regional TV stations” No rights are acquired by virtue of Ms. Leuthold’s failure to exclude Newsworld from this grant of a licence. The question is whether Ms. Leuthold included Newsworld in the grant of rights found in the Stills Licence.”
Following this, the Federal Court of Appeal had to determine how many acts of infringement were committed. This issue was considered the “heart” of the Appellant’s case, as it had a direct impact on the calculation of the damages to be awarded.
The Appellant held that each time the CBC made a transmission of her images to a Broadcasting Distribution Undertaking (“BDU”) (i.e. a cable company or satellite distribution system), not only was the CBC committing an infringement of copyright, but so did the BDUs who would then communicate said work to the public, and this, even if the transmission of the copyright work occurred simultaneously.
The Federal Court of Appeal however rejected the Appellant’s abovementioned reasoning by applying the principle of technological neutrality, as conveyed by the Supreme Court of Canada in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34. Thus, the number of intermediaries found in the transmission chain does not have an impact on the number of infringements. The Federal Court of Appeal therefore concurred with the Trial Judge and ruled as follows:
“ 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.
 I am of the view that paragraph 2.4(1)(c) [of the Copyright Act, R.S.C., 1985, c. C-42], properly interpreted, has the effect of making a network transmission of cable programming material to the public via BDUs a single infringement of a copyright holder’s rights if the network has not properly cleared the rights with respect to that transmission. In this case, the six transmissions of the documentary containing Ms. Leuthold’s images, in violation of her copyright, constituted six acts of infringement, as found by the Trial Judge.
 The Trial Judge also came to the conclusion that each of the six broadcasts on the Relevant Dates was a single communication to the public of the documentary containing Ms. Leuthold’s images and thus a single act of infringement. He came to this conclusion on the basis that the technical means used to relay the infringing copies were not determinative of the damages: see Reasons, paragraph 128. Given that damages depended on the number of infringing broadcasts, the Trial Judge’s comments are indicative of his view that each retransmission was not a separate act of infringement. In coming to that conclusion, he made no palpable and overriding error which would justify our intervention.”
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