May 9, 2019
On May 1, 2019, in Thomson v. Afterlife Network Inc. (O/A Afterlife Co), 2019 FC 545, the Federal Court of Canada (the “Court”) held that Afterlife Network Inc. (“Afterlife”) had infringed the copyright of Dawn Thomson (the “Applicant”), and the other class members, (the “Class Members”) in a class proceeding. The application was based on “obituary piracy”.
The Court ordered that Afterlife was enjoined from infringing the copyright of the Applicant and the Class Members and held that the Applicant and the Class Members were entitled to statutory and aggravated damages and costs.
Afterlife operated a website that posted obituaries and photographs that were authored by the Applicant and the Class Members. The obituaries and photographs were posted without their permission. The website also advertised the option to buy flowers and virtual candles on the same page as the obituaries. On January 11, 2018, the website claimed to contain 1,141,790 obituaries “in Canada”. The Terms of Service on Afterlife’s website asserted that Afterlife owned the copyright in the contents.
The central issue before the Court was whether Afterlife had infringed the copyright and the moral rights of the Applicant and the Class Members, contrary to sections 27 and 28.1 of the Copyright Act (the “Act”).
The Applicant recounted that, after her father passed away in January 2017, she wrote an obituary for him and allowed Fahey’s Funeral Home and Green’s Harbour Community Channel to publish it, along with a photograph she had taken. The Applicant submitted that, in January, 2018, she discovered that Afterlife had displayed her father’s obituary and photograph without her permission. According to the Applicant, Afterlife caused people who viewed the obituary on the website to believe that she had consented to its use and that she was profiting off the flower and candle sales. The evidence of the Class Members was that the obituaries had been written in a personal way and that, in some instances, inconsistent information was added to the obituaries.
Given that Afterlife did not participate in the litigation, the Court held that the application was analogous to a default judgment and that the Applicant and Class Members must establish infringement and entitlement to the relief sought on a balance of probabilities.
The Court further noted that, one month after the class proceeding was commenced, all website traffic to Afterlife was directed to a new website, Everhere. Everhere is similar to Afterlife - it posts obituaries and sells advertising, flowers and virtual candles in association with the obituaries. However, the obituaries appear to be in a template form and are not an exact copy of the authored work. Pascal Leclerc is listed as the director of both Afterlife and Everhere.
Obituaries and Photographs are Original Works: The Court held that the Applicant and the Class Members had personally authored the obituaries, and added their own photographs, using their own skill and judgment. As such, the Court held that the obituaries and photographs fell within the term “original work” as interpreted by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13.
Afterlife Infringed the Applicant’s and the Class Members’ Copyright: Subsection 3(1) of the Copyright Act provides that copyright “means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever,” and also includes the sole right to authorize such acts. Subsection 27(1) of the Act also states that “[i]t is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.”
The Court held that the postings on Afterlife’s website provided evidence that it had reproduced original work and the evidence of the Applicant, and the Class Members established that Afterlife had done so without their permission.
Afterlife Did Not Infringe the Moral Rights of the Class Members: Section 28.2 of the Copyright Act provides that moral rights to the integrity of a work are infringed where the author’s honour or reputation is prejudiced by the distortion or modification of the original work or by using the work in association with a product, service, cause or institution. Following a discussion of the recent jurisprudence on this section, the Court held that, although Afterlife was clearly using the original works in connection with a product or service, i.e. the advertisements for flowers and virtual candles, the Applicant and the Class Members had failed to provide objective evidence that their honour or reputation had been prejudiced.
Relief Granted: The Court granted an injunction to stop Afterlife from continuing to infringe the Applicant’s and Class Members’ rights in the original works. The Court also agreed that the injunction should name Mr. Leclerc, the director of Afterlife, who has continued to post obituaries on his new website, Everhere.
However, the Court held that a wide injunction was neither justified nor practical. A wide injunction, pursuant to s. 39.1 of the Act, enjoins the defendant from infringing the copyright in other works owned by the same plaintiff. The Court held that such relief was not warranted in this case, given that no evidence of other works was advanced by the Applicant or the Class Members, and no evidence was advanced indicating that Afterlife is likely to infringe the other works of the Applicant or the Class Members.
In addition to the injunction, the Court also awarded the Applicant and the Class Members $10 million in statutory damages. The Court awarded a further $10 million in aggravated damages given the significant impact of Afterlife’s conduct on the Class Members and the high-handed manner in which it had conducted itself. This was based mainly on Afterlife’s refusal to take down the obituaries until the commencement of the litigation, its assertion of its own copyright in the original works pirated from the Class Members and its apparent callousness regarding the impact on the Class Members.
Despite finding that Afterlife’s behaviour constituted “obituary piracy” and represented a marked departure from the standards of decency, the Court held that it did not meet the high threshold to warrant punitive damages.