The Vancouver Aquarium filed suit against documentary filmmakers for alleged copyright infringement and breach of contract regarding at least some portions of a video entitled Vancouver Aquarium Uncovered, which purportedly exposes “the truth about whales and dolphins in captivity” at the Aquarium. In “Oral Reasons for Judgment” the Honorable Madam Justice Watchuk described the factual background of the case, in relevant part, as follows:
The Aquarium’s civil complaint alleged that the video contains some of the plaintiff’s copyrighted works, including from the aquarium website, the aquarium blog, and the aquarium’s posts on YouTube.
The Aquarium also submits that the use of film taken by the defendants at the aquarium was in breach of terms of a contract between it and the defendants dated April 24, 2015.
As to the copyright infringement claims, “the defendants submit that it is clear that the fair dealing provisions of the [Canadian] Copyright Act” provide a defense for their conduct,” which they claim was a non-commercial purpose for research and education or for criticism and review, citing the following provisions of the Act:
Research, private study, etc.
29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
Criticism or review
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a)the source; and
(b)if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
Non-commercial user-generated content
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for noncommercial purposes;
(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.
The Court held that fair use and fair dealing were issues of fact to be determined by the trial court.
On the question of injunctive relief, the Court held that all 15 contested segments were to be removed from the video during the pendency of the trial, because their continued publication could not be remedied by damages, and would cause the Aquarium irreparable harm.