In its February 2022 decision in RallySport Direct LLC, the Federal Court of Appeal (“FCA”) reiterated and confirmed the principle established in the decision of the Ontario Superior Court in Trader. This Court determined that a copyright owner could claim the statutory damages provided in section 38.1 of the Copyright Act (“Act”), even where there was no monetary damage and no loss of business opportunity.
The legal profession is already feeling the impacts of the coronavirus, and following recent judgements in Arconti v. Smith and Natco Pharma (Canada) Inc. v. Canada (Health), videoconferencing technology is fast becoming a fixture of court proceedings[1] .
In Arconti, the Ontario Superior Court ruled that if the Plaintiffs wanted to examine for discovery one of the Defendants, they had to do it by videoconference, or forfeit the examination. Judge Myers ruled that there was no reason to hold up the proceedings until a traditional, in-person examination could take place once the pandemic restrictions had been lifted. He deemed videoconferencing “more efficient and less costly” than in person examination, reminding us that, after all, “it’s 2020”, and courts should make use of the technology available to them rather than clinging to the usual ways of proceeding. He also stated that in this day and age, a certain level of skill in using technology should be expected of lawyers and the courts.
The plaintiffs resisted discovery by videoconference, arguing that as opposed to in-person examination there is loss of communication and a risk of coordination by the witness and their counsel. The plaintiffs also argued that the lack of a courtroom setting might remove some pressure on witnesses to tell the truth, could facilitate abuse of process, and would reduce the ability to observe witness demeanor.
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.
