This is a copyright dispute. Ms. Leuthold sued the CBC and an individual for copyright infringement of photographs she took on September 11, 2001. The CBC was made a documentary to show how the September 11 attacks unfolded through the reaction of journalists, cameramen and photographers who were on the scene that day. They negotiated two licences with Ms. Leuthold for use of her photographs. The correct interpretation of those licences as compared with the number of broadcasts was at issue in this proceeding.
The Court held that the first licence was unrestricted, except for use of the images in promotional materials, and thus permitted the first broadcast. The second licence, signed after the second broadcast, permitted the second broadcast. However, the Court held that on six (6) separate occasions, the Plaintiff’s photographs were shown to Canadians without her authorization, thus compensation for each of those communications would be awarded.
There was a dispute over whether a broadcast included more than one time zone, and whether it also included the Newsworld broadcasts. Furthermore, there was a dispute over whether the technical means used to transmit the documentary across Canada consisted of additional broadcasts that deserved compensation. The Court held that one broadcast to a Canadian network includes all time zones. In addition, the licence to the one broadcast was held to include Newsworld. Furthermore, the Court did not accept the principle that compensation should be awarded on the basis of each technical act of infringement as this would be contrary to the reading of the Broadcasting Act with the Copyright Act. The technical means used to relay the infringing work has no bearing on the amount of compensation owed. Finally, the Court refused to order exemplary damages as the six (6) unauthorized communications resulted from an honest mistake which was admitted quite candidly in testimony. The individual Defendant was held not be personally liable as the Court found that the unauthorized communications were not the result of a deliberate act or gross negligence.