Internet "Framing" is a Valid Ground for Copyright Infringement in Canada

The Ontario Superior Court of Justice recently held that internet "framing" is a valid ground for copyright infringement in Canada, in Trader Corporation v. CarGurus, Inc (Trader Corp). ¹

What You Need To Know

Internet framing is defined as "the practice of displaying information from one website within another in a manner that has the appearance of making the framed site’s content that of the framing website." ²

While Canadian courts have previously restricted framing on the basis of a website’s terms of use, the Ontario Superior Court has now confirmed that it also constitutes copyright infringement, even if no reproduction is involved, because it constitutes a "communication to the public" under the Copyright Act. This is especially significant because the Act contains a provision for statutory damages, which could become quite onerous if multiple works are involved.

In a previous case, Century 21 Canada Ltd. Partnership v. Rogers Communications Inc (Century 21),³ the British Columbia Supreme Court explained that internet framing can result in user confusion about the source of the content and further permit the website with the framed information to claim attribution for the content having been viewed by users, which can provide an advantage to the framing website's search engine rankings. ⁴ Notably, framing typically operates without actually reproducing the framed site's content on the website that is doing the framing, but rather displays, or "frames," content directly from the framed website. The Court addressed those concerns by finding that framing was a breach of the website’s terms of use, but it did not consider what other rights or remedies could be involved in addressing a framing concern.

Internet Framing Constitutes Copyright Infringement in Trader Corp.

In Trader Corp., the Ontario Superior Court of Justice addressed internet framing in the context of copyright infringement. CarGurus, Inc., the defendant in Trader Corp., argued that they had not infringed copyright in Trader Corp.'s photos as they had not reproduced the photos, but rather "framed" them, meaning that the photos were located on other servers hosting the information. ⁵ However, in finding infringement, the Court interpreted internet framing to fall under section 2.4(1.1) of the Copyright Act, ⁶ which provides that "communication of or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public." ⁷ Thus, the Court provided that when CarGurus, Inc. displayed the photos on its website, it was "making it available" to the public by telecommunication, regardless of where the photos were actually being hosted. ⁸ Thus, a violation of the owner’s copyright was found under section 27 of the Copyright Act.   

Trader Corp. establishes that internet "framing" can lead to copyright infringement in Canada as a violation of the copyright owner's rights to telecommunication allowing public access.

Framing Can Lead to Significant Statutory Damages

Trader Corp. is also noteworthy as significant statutory damages were awarded by the Court. Pursuant to section 38.1(1) of the Copyright Act, a copyright owner may claim, in lieu of actual damages, statutory damages of a sum of not less than $500 and not more than $20,000 with respect to all infringements for each work or other subject-matter, subject to the discretion of the court. Although the Court in Trader Corp. exercised its discretion to reduce the statutory damages from $500 to $2 per infringed photo, due to the number of photos involved, the total award amounted to $305,064. This damage award is particularly noteworthy in that Trader had acknowledged that it has sustained no monetary damages and lost no business as a result of the infringement. ⁹