By Richard Stobbe

The Vancouver Aquarium brought an injunction application to stop the online publication of a critical video entitled “Vancouver Aquarium Uncovered”, which used the Aquarium’s copyright-protected materials in a “derogatory manner”, according to the Aquarium.

In the fascinating case of Vancouver Aquarium Marine Science Centre v. Charbonneau, 2016 BCSC 625 (CanLII), the court weighed the Aquarium’s effort to prevent the unauthorized use of their copyright-protected video clips, against the movie producer’s argument that the exposé is on a topic of public interest and shouldn’t be silenced.

This represents the first judicial review of Section 29.21 of the Copyright Act, first introduced in 2012, which covers “non-commercial user-generated content”. In the injunction application the court skimmed over this issue, preferring to leave it to trial. However, the court made passing comments about the availability of a defence which relies on showing that the copyright-protected content was used “solely for non-commercial purposes”. In this case, there was evidence before the court that the movie had recently been screened in Vancouver where attendees had been charged a $10 entry fee. The court also made reference to an Indiegogo fundraising campaign related to the movie production.

Ultimately, the court restricted publication of 15 images and video clips – about 4 minutes worth of content - which the Aquarium claimed to own. The injunction stopped short of attempting to enjoin publication of the whole video, but rather ordered that the defendants remove the 15 contested segments from the video.

If it proceeds to trial, this will be one to watch.

Calgary – 07:00 MST