Davydiuk v. Internet Archive Canada and Internet Archive, 2016 FC 1313

In the within action for copyright infringement, the Plaintiff claims to be the owner of the copyright in certain cinematographic works and unfixed performances described in his original Statement of Claim. The Defendant, Internet Archive, is a California-based non-profit digital library that operates a service called the Wayback Machine, which preserves publicly available internet sites in a free, searchable archive. The Plaintiff had requested that certain webpages be removed or excluded from their archive. The Defendants advised him that the identified material had been taken down from their websites and removed from their collections. In 2011, the Plaintiff discovered that the Defendants were running a new version of one of its archiving websites with the works at issue and commenced this infringement action.

The Plaintiff brought this motion to amend his Claim to add express references to a claim for ownership of the copyright in photographs, images and audiovisual recordings created in the production of these works and performances. The Defendants brought a motion for summary judgment. The Court allowed the Plaintiff's motion as it related to the works, but not the performances, and the Defendants' motion as it related to the performances, but not the works.

On the motion to amend, the Court found that it was not plain and obvious that the proposed amendments would fail, nor would the proposed amendments cause prejudice to the Defendants that could not be compensated with costs. At the Plaintiff's request, the Defendants had deleted the webpages at issue in reliance on the pleadings as originally framed. The Defendants claimed that this had resulted in a loss of evidence relevant to its defence of the action. The Court noted that the evidence did not establish that the webpages could not be recovered. The Court was also reluctant to conclude that the Defendants could rely on the Plaintiff's request as a basis for eliminating evidence relevant to the issues in this litigation, particularly after the litigation has commenced. The Court was satisfied that the Defendants had not established prejudice resulting from the proposed amendment that should preclude the Court from granting the requested leave.

On the motion for summary judgment, the Court disagreed with the Defendants' three reasons for why there was no genuine issue for trial. First, the Court saw no basis either in law or logic to conclude that production of a copy of the original work is an absolute prerequisite to success in establishing either subsistence of copyright in the work or that a reproduction of the work represents a sufficiently substantial reproduction to constitute infringement.

The Court reached the same conclusion in respect of the Defendants' submission that without being able to show the Court an original copyrighted work, the Plaintiff could not adduce evidence necessary to conduct the comparative analysis to show that the Defendants had reproduced the works in whole or substantial part.

Third, the Court dismissed the Defendants' argument that the photographs and still images (which are the allegedly infringing reproductions) were not capable of amounting to a "substantial" reproduction of the videos for which the Plaintiff claims copyright protection. This analysis would require a qualitative assessment comparing the copyrighted work with the allegedly infringing work. Moreover, the Court noted that the analysis was highly dependent upon the facts of each individual case, which precluded a finding as a matter of law in this summary judgment motion that photographs and still images were incapable of infringing the copyright in a cinematographic work.