A court in Canada judged that the operators of a website – Afterlife Network Inc. – had infringed copyright by publishing obituaries and photographs of the deceased. The Court ordered the defendant to desist from further acts of infringement and awarded statutory (CAD10mn) and aggravated damages (CAD10mn) to the Applicant.
Thomson vs Afterlife Network Inc.
The Applicant, Dawn Thomson instituted the action in a representative capacity on behalf of herself and other persons (“Applicants”) who authored respective obituaries and photographs posted by the Defendant on its website without authorisation. The Applicants also sought damages for the alleged infringement of their moral rights in the obituaries and photographs.
On the claim for copyright infringement, the Court first determined that the obituaries and photographs satisfied the requirements of originality in that the Applicants, respectively personally authored and chose the obituaries and photographs “using their own skill and judgment, choosing their own words to convey the appropriate message about the life of the deceased person and their funeral arrangements”. The Defendant, having posted the obituaries and photographs without authorisation, infringed the copyright of the Applicants.
On the claim for infringement of moral rights, the Court held that moral rights infringement has both a subjective and objective element and that both elements must be present for a claim to succeed. While the subjective element requires the author’s own subjective evidence as to how his/her honour or reputation has been affected, the objective element requires “an objective evaluation” based on “public or expert opinion”.
The court found that the Applicants satisfied the subjective element by showing that amongst other concerns, they “were mortified that others would think that they were profiting from their bereavement”. However, they failed to satisfy the objective element as there was no public opinion or expert evidence provided nor was there any authority that suggests the Court could make such determination of prejudice to honour or reputation without objective evidence.
On the claim for a (wide) injunction, the court held that the Applicants needed to show that, besides the works which formed the subject matter of the suit in the first place, the Applicants needed to show that they had other works which the Defendant may likely infringe on. The Applicants only had specific obituaries and photographs in which they own copyright and so the court refused the claim for a wide injunction but granted an injunction to restrain the Defendant from further infringing on the Applicants’ specific works.
This case reminds one of some of the arguments put forward to support the establishment of limitation and exceptions for digitisation of archival materials. There are suggestions that most copyright objections to digitisation of copyright-protected archival materials do not stem from copyright perspectives. Instead, possible copyright owners decline consent on grounds of privacy and/or require further information on the context of the digitisation project.
Archival materials in that sense are “personal” and “family” documents much like the obituaries and related photographs in the present case. In these circumstances, is the archival institution likely to face copyright infringement suits? What is the likelihood of success or failure of such suits? In the light of damages of CAD20mn, these are real questions.
For archival institutions, the context of digitisation will heighten or reduce the risk of copyright infringement claim. In the Thomson case, the Applicants were not averse to the obituaries being published. They had in fact sent the obituaries and photographs to the respective funeral homes that handled the burial of their loved ones. What they found reprehensible was the defendant’s actions and how it portrayed them. Where an archival institution’s digitisation project is perceived as having the appropriate context, the risk of copyright infringement claim is likely to be low.
The amount of damages awarded in the present case strengthens the argument that archival institutions could face significant damages if they handle archival materials in a manner that is reprehensible to their patrons. The Canadian court did not consider whether the defendant’s use of the obituaries and photographs was fair dealing. It may be assumed that the court considered fair dealing a defence stricto sensu and as such expected that it must be raised by the defendant before it may be considered. The present case was undefended, and the Applicants proved their case on a balance of probabilities. However, the Applicants produced evidence to show that the defendant had claimed copyright in the obituaries and photographs they shared and sold other products together with the obituaries. The court’s consideration and acceptance of this evidence may be construed as an indirect way of considering the fair dealing defence.