Recent Copyright Decisions

• Law Firm: Goldman Sloan Nash & Haber LLP
• Subject Matter: Intellectual Property, Law Practice Management, Copyright, Finance/Accounting
• Author: Mr John McKeown
• Published date: 24 April 2023

In this blog entry we deal with copyright developments in the last few months.

The General Term of Protection

The general term of protection has been amended. Section 6, in effect December 30, 2022, provides that the term for which copyright subsists, except as otherwise expressly provided in the Act, is the life of the author, the remainder of the calendar year in which the author dies, and 70 years following the end of that calendar year. The amended term does not revive the copyright in any work in which the copyright had expired before December 30, 2022. Other sections dealing with the term of protection for specific types of works were previously amended.

Expert Evidence

In Crocs Canada, Inc. v. Double Diamond Distribution Ltd. 2022 FC 1443 the court said if a portion of an expert's evidence is found to be inadmissible because the expert strayed outside the scope of their mandate, depending on the circumstances, the balance of the expert's evidence was not necessarily tainted.

Industrial Design Infringement

In Crocs Canada, Inc. v. Double Diamond Distribution Ltd 2022 FC 1443 the court concluded that a comparative analysis to determine whether infringement has occurred made from the perspective of the informed consumer must involve, at least, a consumer familiar with the market field, considering the scope of protection. The court considered the multiplicity of points of differentiation raised by the defendant but concluded that when considered in the context of the broad protection that the design was entitled to, they could not avoid a finding of infringement. This was a case where notwithstanding the alleged differences the designs were the same.

Because of the rebuttable presumption of originality, the defendant who raises invalidity based on prior art will bear the onus of proving through admissible evidence the existence of prior art that invalidates the design.

A successful plaintiff may elect to seek an accounting of profits in lieu of damages. When seeking an accounting the plaintiff need not establish, they were damaged by the defendant's infringing activity. The plaintiff only needs to establish a causal link between the infringement and resultant unjust enrichment, and it is not an error for a trial judge to award an accounting of profits absent compelling reasons. Since it is an equitable remedy there is an element of discretion potentially involved and the remedy is not "as of right". The burden is on the defendant to prove it has...