In a case raising serious implications for documentary filmmakers over freedom of expression, contracts and copyright issues, the British Columbia Court of Appeal has overturned an injunction issued by a lower BC provincial court against the distribution of a documentary film made by the defendant Gary Charbonneau. (Vancouver Aquarium v Charboneau, 2017 BCCA 395)
Charbonneau created a film called Vancouver Aquarium Uncovered which was highly critical of the Aquarium with respect to its practice of keeping cetaceans in captivity. The Aquarium claimed both copyright infringement and breach of contract and obtained a preliminary injunction from the BC Supreme Court (2016 BCSC 625). The British Columbia Civil Liberties Association (BCCLA) and Animal Justice were intervenors on appeal
Charbonneau claimed the film was an artistic and expressive documentary work on a matter of public interest, and that the pre-trial injunction harmed protected freedom of expression and constituted private censorship. (para 27)
BCCLA stressed the importance of upholding the charter value of freedom of expression since the disputed content in the film was expressive content. (para 29). Animal Justice argued the case showed how animal use industries claim copyright infringement in film and photographs in order to suppress the production of unfavourable and critical publications. (para 30).
In setting aside the pre-trial injunction, the Appeals Court agreed with Charbonneau that the trial “judge did not sufficiently analyze the issue of fair dealing, including whether it was non-commercial user-generated content under s. 29.21.” (para 53)
Since this case arose in the context of a pre-trial injunction, there was not a full record, and the lower court did not have the opportunity to consider the issues raised in the breach of contract and copyright claims. The case has been remanded back to the trial court and the action will proceed on these issues.
There is an ongoing controversy over the Aquarium’s practices and this ruling is by no means the last word. But while there is still much to be determined about this case, this decision is significant for several reasons.
The BCCA acknowledges that charter values need to be taken into account when a plaintiff seeks to enjoin expressive content. There is scant case law on the interrelationship between freedom of expression and copyright infringement. The court also stressed the significance of the fair dealing and user-generated content defenses raised by the defendant.
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Sam Trosow 