Summary Judgments in Copyright Claims: The War Has Changed

Courts are progressively moving away from their passive caution in matters of patent or copyright infringement where serial infringers are thriving on the slowness and inefficiency of the justice system to keep infringing in the course of proceedings. One way to curtail the modus operandi of Canadian infringers who rarely have a valid defence as they don\’t need it until a case is heard on the merits, is to cut short litigation by several years and issue summary judgments against such infringers. (see ViiV Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122)

For example, in \” target=\”_blank\” rel=\”noreferrer noopener\” data-type=\”URL\” data-id=\”>\”>Patterned Concrete Mississauga Inc. V. Bomanite Toronto Ltd., 2021 FC 314, the Federal Court granted a motion for summary judgment against a plaintiff\’s competitor for infringing the plaintiff\’s subsisting copyright in various job-related forms, including for quotes and contracts. The Court was satisfied there is no genuine issue for trial and concluded on summary judgment that copyright subsisted in the forms and was infringed.

We can see in this decision that originality, infringement, and statutory damages can easily be assessed on the basis of factums and the capricious hearing of witnesses on the merits causing unnecessary costs. In our opinion, summary trials must become the norm for all internet based infringement.