Teresa Scassa - Blog

In December 2013, Justice Campbell of the Federal Court of Canada awarded 10 million dollars in statutory damages to Twentieth Century Fox Film Corporation against Nicholas Hernandez and two unknown defendants. The court also awarded an additional half a million dollars in punitive damages. The decision was reached by default judgment, which means that the defendants did not respond to the lawsuit.

Statutory damages for copyright infringement have been available under Canada’s Copyright Act since 1997. Essentially, a plaintiff in a copyright infringement suit has the option to choose to receive statutory damages rather than to establish the actual quantum of damages suffered. For infringement with a commercial purpose, statutory damages range from a minimum of $500 to a maximum of $20,000 for all of the infringements related to a given work. A plaintiff might choose statutory damages when the amount of their loss is either very small or is difficult to quantify. Statutory damages are of particular benefit to large corporate rights holders whose works are downloaded in large quantities from the internet, and who might otherwise face difficult challenges in proving actual losses. Among other things, statutory damages provisions in the U.S. have made it worthwhile for record companies to sue individuals for music downloading. Where a defendant has downloaded 1000 songs, for example, the per-work damage awards would quickly add up to a significant total, making the lawsuit not simply about the recovery of damages (which may greatly exceed the benefit obtained by the defendant) but also about punishment and arguably deterrence. In Canada, the 2012 amendments to the Copyright Act have made these kinds of lawsuits more difficult in cases where the defendants have copied works for purely private purposes. In such cases, the amount of statutory damages is considerably reduced and such damages are awarded not per work, but rather for all infringements and for all works in any given proceeding.

In Twentieth Century Fox v. Hernandez,* the defendants were alleged to have operated two websites that made unauthorized copies of episodes of both The Simpsons and Family Guy available for free download or streaming. These activities were not of a purely private nature – the copies were made with a view to disseminating them further, and there was evidence that the defendants profited from their venture. The Court did not provide a detailed accounting of how it arrived at the statutory damages award of $10,000,000. For example, it did not identify how many episodes of the two television series were made available for download. As a result, it was not clear whether Justice Campbell was awarding damages at the low or high end of the scale – or somewhere in between. Since no amount per work is actually specified (nor is the number of works provided) it is no surprise that there is also no explanation of the rationale for the per-work amount. These details would seem to be important in shaping the jurisprudence in relation to these types of awards. Further, according to Justice Campbell, the award of statutory damages alone was not sufficient “to achieve the goal of punishment and deterrence of the offense of copyright infringement in this case”. For this reason, the additional half million dollars in punitive damages was awarded. Without any indication of the number of works at issue or the per work amount of damages, it is also difficult to assess the appropriateness of the award of punitive damages. Given that the defendants did not defend themselves in the proceedings, it is not likely they will file an appeal; however, the low likelihood of an appeal is not an excuse for not providing full reasons to explain the award of damages. [Note that there are approximately collectively about 750 episodes of the two shows. If all episodes were made available from the websites, then the damage award would be just over $13,000 per episode – on the high end, but not at the top of the scale.]

Mistrale Goudreau and Joao Velloso have written an interesting article on statutory damages in the recently published book Intellectual Property Law for the 21^st Century: Interdisciplinary Approaches. In their piece, titled “Punishment Private Style: Statutory Damages in Canadian Copyright Law”, Goudreau and Velloso argue that punitive and statutory damages are used by courts to penalize copyright infringement – as is evident in the Hernandez case. The authors argue that the result is a form of punishment for infringing activity that lacks the procedural safeguards that are normally present in criminal prosecutions. While the authors’ focus is more on the use of statutory damages in non-commercial contexts, they offer some thoughtful – and critical – insights into the role of statutory damages within our copyright regime.

* Note that the court decision discussed in this blog is not available from the Federal Court’s website. This link is to a private website that has made the decision publicly available.

The goals of the open government movement – which has spread rapidly around the world in the last five years – are to increase government transparency and accountability, to engage citizens and increase their participation in government, and to improve governance. This is to be done primarily through enhanced access to government information and improved methods of citizen-government interaction. Open government includes three main streams: open access, open data, and open participation. The open data stream also carries with it the goal to stimulate innovation and economic development by making government data available in reusable and interoperable formats and under open licences.

Canada signed on to the Open Government Partnership in 2011. In doing so, it committed to taking a number of steps, including developing an Action Plan for open government that would set out specific goals and commitments. The OGP also requires governments to report on their progress, and provides independent review of each government’s updates.

Canada’s Action Plan for Open Government set out a series of commitments spread over a 3 year period. It was published in 2012 and Canada submitted its first self-assessment report to the OGP in 2013. This progress report has been the subject of an independent review by the OGP, through its independent reporting mechanism, and a copy of this review is now available for public comment.

The independent review confirms that the Canadian government has made significant progress on a number of the commitments it set out in its Action Plan, and that many of these commitments are either on target or ahead of schedule. Some of these achievements are considered to be “clearly relevant” to the values of the OGP and of potentially high impact. These include the completion and launch of a new Open Government Licence (commented on in an earlier blog post), measures taken under the International Aid Transparency Initiative, the online publication of resource management data, and the electronic publication by federal regulators of regulatory plans.

The review, carried out by Carleton University Professor Mary Francoli, does note, however, that a number of the government’s other commitments are less ambitious and less directly relevant to the goals of the OGP. This does not mean that they are not worth doing, just that they are less impactful. One issue, therefore, would seem to be whether the government’s plan has struck the right balance between ambitious and significant goals and low hanging fruit.

A further concern is that the broad commitment to open government has been channelled primarily into developments around open data. While open data is important, and while developments in this area have been meaningful, open access and open participation are crucial components of open government and are essential to realizing its objectives. Indeed, one of the recommendations in the review document relates to the need for the government to broaden its focus so as to give more attention to open access and participation.

Through her consultation with stakeholders and other organizations, Francoli identifies a broad range of concerns over how the federal government communicates with citizens, and how it compiles, shares and archives information. The review is particularly critical of the government’s tepid improvements to access to information in Canada, and it suggests that nothing short of legislative reform will deliver necessary improvements. The review also indicates that there have been shortcomings in citizen and stakeholder engagement and participation in the development of the goals and priorities of open government. The review also makes recommendations regarding improved information flows, the need to ensure that data is released in useable formats and with appropriate metadata, and the need to expand integrity commitments. While the review notes that open government has a strong champion at the federal level in the Treasury Board Secretariat President Tony Clement, it also identifies a need for broader support within the government.

A copy of the report and information on how to provide comments and feedback on it are available here.