snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Unusable Copies and Copyright Infringement

Posted in Copyright, Intellectual Property
Keith Rose

Copyright law offers up a panoply of interesting questions, which often verge on the philosophical. One such question is: if one tries to make a copy of something, but the copy is defective and useless, has one made a copy at all? According to a recent decision of Master Hanebury, of the Court of Queen’s Bench of Alberta, the answer could be yes.

The decision, in Geophysical Service Inc v Antrim Energy Inc, 2015 ABQB 482, involved a claim of copyright infringement of geophysical data that had been obtained from a regulatory board. The plaintiff, GSI, is in the business of producing and licensing seismic data. The defendant, Antrim, had previously investigated the possibility of licensing data from GSI, but ultimately did not do so, apparently because of cost concerns.

Subsequently, Antrim requested and received access to certain information, including seismic data, held by the Canada Newfoundland and Labrador Offshore Petroleum Board (CNLOP). In particular, it received paper photocopies of two lines of seismic data produced by GSI which were blurry and, according to Antrim, unusable. Antrim’s evidence was that these documents were placed in a filing cabinet and promptly forgotten about.

Antrim applied for summary dismissal of the claim, on several grounds, none of which were ultimately successful. The argument of interest for this note is that the copy Antrim obtained from the CNLOP was unreadable and useless to it.

Master Hanebury ruled that this did not amount to grounds to summarily dismiss GSI’s claim.

There are two important caveats to note. First, there has been no finding of copyright infringement in this case. The decision to reject the application for summary dismissal merely means that the matter could go to trial (although the parties could always reach a settlement instead). Second, copyright infringement is a highly fact-driven analysis. So this decision does not mean that an unusable copy will always infringe copyright, or even that it does in this particular case. But the analysis is interesting, nonetheless.

To infringe copyright, a copy must reproduce “any substantial part” of a protected work. Precisely what that means is one of the central preoccupations of copyright law. The test is both quantitative and qualitative. “As a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author’s skill and judgment expressed therein.”[1]

There was no dispute that Antrim intended to have a copy made (although it apparently did not specifically know the works originated from GSI). Master Hanebury considered that the blurry copy which it received was, in fact, a copy. It arguably reproduced a substantial part of the original work because, quantitatively, it represented the entire work, and qualitatively, it was intended to avoid the time and expense of negotiating a license for the work. The fact that no adverse effect actually resulted from Antrim’s use of the copy was a relevant factor to be considered, but not determinative. Accordingly, Master Hanebury could not conclude that there was a high enough likelihood of Antrim’s argument prevailing to justify a summary dismissal.

Master Hanebury’s reference to Antrim’s subjective intention in assessing infringement is doctrinally interesting. Copyright infringement is generally considered to be a matter of strict liability: if one makes an infringing copy in fact, it is irrelevant whether one intended to do so or not. Conversely, if one does not in fact make an infringing copy, merely intending to do so is not, by itself, actionable. Does this leave room to consider subjective intention when assessing the extent to which a putative copy is a substantial reproduction of an original work? It seems analytically out-of-place.

However, the same result might have been reached had Master Hanebury instead applied the approach endorsed by the Supreme Court of Canada in the Robinson case. If a comparison of the blurry copy to the original revealed identifiable elements of the original in the blurry copy which, together, amounted to a substantial part of the original, the copy could reasonably be said (ignoring other possible defences) to infringe copyright in the original.

[1] Cinar Corporation v. Robinson, [2013] 3 SCR 1168, 2013 SCC 73, at para. 26.