Category Archives: Copyrights

Federal Court rejects controversial copyright litigation strategy

On November 12th, the Federal Court of Canada dismissed a motion for certification of a reverse class action lawsuit that was brought against potentially thousands of Canadiansby Voltage Pictures, LLC, a Canadian film production company (“Voltage”).

Voltage was able to identify thousands of IP addresses that were alleged to have infringed copyright by offering or uploading its films through BitTorrent, a peer-to-peer file sharing platform.

In 2016, it brought a motion for an order to certify its application as a respondent class proceeding. The proposed class respondents were all those individuals whose internet accounts had been detected as involved in direct or indirect infringement of its films or offering the copyrighted works for download.

Voltage has already brought 96 of these lawsuits against classes of unnamed defendants in the United States, according to an affidavit which was submitted to the Court. This litigation strategy has often been dubbed “copyright trolling” by its opponents.

A preliminary issue which was raised before the Court was the respondents’ lack of an incentive to defend themselves. This issue was solved through the intervention of the Samuelson-Glushcko Canadian Internet Policy and Public Interest Clinic (CIPPIC), which submitted strong arguments against certification.

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The Ins and Outs of Canadian Copyright: Movies and the real and substantial connection test

A recent decision of the Ontario Superior Court of Justice sheds some light on the application of the “real and substantial connection test” under Canadian copyright law where alleged infringement takes place across geographic borders. In Pourshian v. Walt Disney Company, an Ontario court allowed an action for copyright infringement to proceed against three Walt Disney Company related entities based on a movie distributed through Canadian movie theaters.

The plaintiff, Damon Pourshian, filed a Statement of Claim against a group of companies related to the Walt Disney Company. He alleged that Pixar’s award-winning animated film, “Inside Out”, released in 2015, infringed his copyright in a short film that he created in 1998 also entitled “Inside Out”. In Pourshian’s film, five organs—Heart, Stomach, Colon, Bladder, and Brain—guide the protagonist’s behaviour while in Pixar’s film, five emotions—Joy, Sadness, Anger, Fear, and Disgust—influence the protagonist’s behaviour.

In response, the defendants filed a motion to set aside service of the Statement of Claim and to stay the action on the grounds that the defendants are incorporated and have their principal places of business in the United States, that Pixar’s “Inside Out” was made in California, and as a result Canada’s Copyright Act does not have extraterritorial application. The main issue on the motion. therefore, was whether the Ontario court should assume jurisdiction over Pourshian’s action.

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Spooky IP

Fasken IP, Halloween costume copyrights

Choosing the perfect Halloween costume is a struggle for most trick-or-treaters; however, it can be particularly challenging for intellectual property lawyers. In Canada, unlike in some other countries, copyright exists in costumes which are representations of a copyrighted real or fictitious being, event or place.[1] For people who don’t want to buy a licensed costume that only leaves a few options.

Would-be James Bonds and Sherlock Holmes are in luck though. In Canada, written works are protected under copyright for a period of 50 years after the death of the author, which puts both Ian Fleming’s and Sir Arthur Conan Doyle’s stories in the public domain. The movies and TV series on which most of us would base a costume are still protected however, meaning that unique elements of those productions not found in the original books may still be protected. So would-be Le Chiffres from Casino Royale should have two good eyes and Blofelds shouldn’t have white cats (both are Hollywood additions to the original characters).

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