Sarah D. Pinsonnault
Articles du même auteur
10 Juil 2014

Dispute over Unauthorized Broadcasts by the CBC

Par Sarah D. Pinsonnault, avocate

By Sarah D. Pinsonnault

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,

“[23] 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:

“[30]           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

“[40]           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.


[42]           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.

[43]           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.”

To read this decision in its entirety and other
elements addressed therein, click here.

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