In Club Resorts Ltd. v Van Breda, 2012 SCC 17, the Supreme Court clarified the rules for when a Canadian court can assume jurisdiction over a claim against a party located outside the jurisdiction. Specifically, it clarified the rules for applying the real and substantial test to determining if there is a sufficient connection between the subject matter of the action and the jurisdiction for determining jurisdiction simpliciter. The Van Breda case did not, however, address how that test would apply to cases involving infringement of copyright.
Recently two cases have canvassed this issue. In October last year, in Davydiuk v Internet Archive Canada, 2014 FC 944, the Federal Court held that the connecting factors identified by the Supreme Court for determining the territoriality limits of the Copyright Act in Society of Composers, Authors and Music Publishers of Canada v Canadian Assn. of Internet Providers, 2004 SCC 45 could be used for determining jurisdiction simpliciter. It went on to rule that the Federal Court had jurisdiction simpliciter over the Internet Archive in a copyright infringement case because it archived a file located on a Canadian website and made it accessible to Canadians over the Internet from a web site located in the United States.
Last week an Alberta court also ruled that the connecting factors identified in the SOCAN case could be used for determining jurisdiction simpliciter in Geophysical Service Incorporated v Arcis Seismic Solutions Corp, 2015 ABQB 88. One of the claims in the case alleged that copyright materials were sent by the Canada Newfoundland and Labrador Offshore Petroleum Board to recipients into Alberta. The Alberta court concluded that sending copyright materials into Alberta satisfied the requirements for jurisdiction simpliciter. According to the court:
In Disney Enterprises Inc. v Click Enterprises Inc. (2006), 2006 CanLII 10213 (ON SC), 267 DLR (4th) 291, 49 CPR (4th) 87 (ONSC) the court summarized Binnie J’s decision in SOCAN:
In Socan, the court had to decide where copyright infringement occurs and applied the “real and substantial connection” test as developed in Morguard and Beals. The court also relied on the language of LaForest J. in Tolofson v. Jensen: (Litigation Guardian of) v. Gagnon and said, “[t]he test reflects the underlying reality of the territorial limits of law under the international legal order’ and respect for the legitimate actions of other states inherent in the principle of international comity.” In Socan, the court concluded that copyright infringement occurs in Canada where there is a real and substantial connection between this country and the communication in issue. It recognized that either the country of transmission or the country of reception may take jurisdiction over a transmission linked to its territory:
In terms of the Internet, relevant connecting factors would include the situs of the content provider, the host server, the intermediaries and the end user. The weight to be given to any particular factor will vary with the circumstances and the nature of the dispute. (Citing SOCAN at pg 456)
Although the case concerned the applicability of Canada’s Copyright Act, RSC 1985, c C-42 on foreign entities, Binnie J relied on the real and substantial connection test and private international law principles in concluding that Canada could assume jurisdiction when Canada is either the country of reception or origin of the copyrighted materials.
Recently, the Federal Court of Canada in Davydiuk v Internet Archive Canada, 2014 FC 944 (CanLII) held that SOCAN is the proper test for copyright infringement in a jurisdiction simpliciter analysis:
The Club Resorts case dealt with torts and fundamental principles of conflict of laws (private international law) and did not deal with a copyright infringement on the internet. At paragraph 85, Justice LeBel wrote:
The list of presumptive connecting factors proposed here relates to claims in tort and issues associated with such claims. It does not purport to be an inventory of connecting factors covering the conditions for the assumption of jurisdiction over all claims known to the law.
I find as did the Prothonotary that when dealing with a factual situation like this regarding the internet, that SOCAN can be relied on as the test Club Resorts is not as helpful as the factors the Supreme Court listed are applicable to determine the proper jurisdiction for an international tort.
As a result, I find that the site of copyright infringement is a presumptive connecting factor of a real and substantial connection based on the test in SOCAN.
The test enunciated by Binnie J in SOCAN for determining the site of copyright infringement lists a variety of factors to consider, though the facts of this case are quite simple. GSI, an Alberta corporation, provided the Board the seismic materials per the requirements of the NL and Canada Accord Acts and respective regulations. GSI alleges that the Board received requests for the seismic materials from Alberta corporations, and then sent the seismic materials directly to Arcis and perhaps other Alberta corporations. Although the Board is located in NL, since the materials were sent directly to Alberta and received in Alberta, I find that Alberta is a site of any alleged copyright infringement for the purposes of this application.
Since the copyrighted materials were sent by the Board directly to Alberta corporations, and because copyright law is of general application throughout Canada, I find that Alberta has a real and substantial connection to the subject matter of the litigation.