Federal Court Awards Lowest Per Work Damages for Commercial Copyright Infringement

In Royal Conservatory of Music et al v Macintosh (Novus Via Music Group Inc.) et al, 2016 FC 929, the Royal Conservatory and its publisher (the Applicants) sought damages for infringement of 21 musical works that were included in a series of instructional piano books published by Clarke MacIntosh doing business as Novus Via Music Group Inc. (Novus) and Conservatory Canada (the Respondents). 

The Federal Court (the Court) decided in favour of the Applicants, but awarded the lowest commercial per work damages permitted under the Act.

A 1999 licensing agreement between the Royal Conservatory’s publisher and Conservatory Canada’s previous publisher covered the inclusion of the works in an earlier edition of the series.  While the existence of this agreement was not in dispute, neither party was able to produce the document.  Conservatory Canada terminated its publishing arrangement and then had Novus publish the new edition.   The Respondents asserted that in the agreement, the Applicants had granted a license to the previous publisher acting on behalf of Conservatory Canada, and so its benefit continued, while the Applicants asserted the license was only to the previous publisher, and so ended when Conservatory Canada terminated its publishing arrangement. Ultimately, the Court found that the license from the Applicants had been to the previous publisher, had not been transferred to the Respondents, and had terminated before the publication of the Novus edition. 

In assessing damages, the Court considered the following relevant statutory factors:

• the good or bad faith of the defendant;
• the conduct of the parties before and during the proceedings; and
• the need the deter infringement. 

The Court found that the infringement was a result of poor record keeping and rights management on behalf of both parties.  Due to the Applicants’ equal contribution to the incomplete record - and a paucity of sales evidence detailing the sales figures for either product - the Court set damages at $500 per work, the lowest end of the commercial range for statutory damages.

Summary By: Lisa Danay