By Richard Stobbe

In 2015 an independent film-maker shot a film critical of the Vancouver aquarium, using some footage over which the Aquarium claimed copyright.  The Aquarium moved to block the online publication of the film.

Last year we wrote about that dispute and the preliminary injunction that prevented publication of parts of that documentary. In Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395 (CanLII),  the preliminary order was appealed, and the documentary film-maker won. The decision is noteworthy for a number of reasons:

• In a preliminary injunction, at the “balance of convenience” analysis, freedom of expression should be weighed, particularly in a case such as this, where the documentary film engages a topic of public and social importance. The court affirmed that freedom of expression is among the most fundamental rights possessed by Canadians.
• The Copyright Act has an exception related to “user-generated content” under section 29.21 of the Act. This unique provision has been somewhat neglected by the courts since it was introduced in 2012.  This case remains the sole judicial consideration of section 29.21. At the lower level, the judge did not sufficiently analyze the issue of “fair dealing”, including whether this content qualified as non-commercial user-generated content under s. 29.21. However, we will still have to wait until a trial on the merits, to see how the court will deal with the bounds of non-commercial user-generated content under the Copyright Act.

The court sided with the documentary film-maker and set aside the earlier injunction. If this case goes to trial, it will finally provide some guidance on the application of section 29.21.

Calgary – 10:00 MST