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
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
*With assistance from Yu Seon Gadsden-Chung, articling student..
12017 ONSC 1841 [Trader Corp.].
2Ibid at para 383.
32011 BCSC 1196 [Century 21].
5Trader Corp., supra note 1 at para 33.
6RSC 1985, c C-42.
7Ibid at s. 2.4(1.1) and Trader Corp., supra note 1 at para 31.
9Trader Corp., supra note 1 at paras 66-67.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.
© 2017 by Torys LLP.
All rights reserved.