Copyright Infringement Across Borders

Copyright protects a range of creative works – photographs, images, software, books and music, to name a few.  And copyright law is considered to be “territorial” – this means that Canadian copyright law deals with protection and enforcement within Canada.  So what happens when works are published online, or transferred across borders?  Do the traditional territorial concepts break down in an environment where borders are technologically nonexistent?

Two recent cases illustrate how the law adapts to these issues: 

  1. In Moberg v. 33T LLC et al., 2009 WL 3182606 (D. N.J. Oct. 6, 2009), a US court considered the publication of images online in Germany. The case turned on a technicality of whether a work published on a website in Germany (or anywhere outside the US) should be considered for legal purposes to have been simultaneously published in the US. The court decided that the images were not “United States works” leaving the author free to make a copyright infringement claim in the US, without first registering copyright in the US.  This helps clarify the rights of Canadian authors who may wish to sue in the US, even though copyright in their works is not registered there.
  2. The Canadian decision in Thumbnail Creative Group Inc. v. Blu, 2009 BCSC 1833 (CanLII) dealt with a transfer of images across the Canada / US border. In this case, a BC company alleged that certain Canadian defendants provided images to the US defendants in violation of the author’s copyright and moral rights.  The court analyzed the situation and found that if copyright infringement occurred anywhere, it was in the US, not Canada. Since Canadian copyright law is territorial, it cannot be infringed by any act which occurs outside Canada. The court dismissed the claim, indicating that a US court was more appropriate to decide the matter.

Calgary – 14:00 MST 

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