Earlier this year, the Federal Court awarded damages of $20 million for the unauthorized reproduction of obituaries online. That decision, Thomson v. Afterlife Network Inc., 2019 FC 545, demonstrates that severe penalties are available against online operators who infringe copyright for commercial purposes.
Afterlife, an online website that reproduces obituaries, launched in 2017. Afterlife reproduced over one million obituaries with related photos of deceased Canadians. Grieving families were angered by Afterlife’s conduct: the site had reproduced obituaries and photographs without their consent, sold flowers and virtual candles and hosted advertising for third-party businesses in association with the obituaries. Afterlife’s Terms of Service also stated that Afterlife owned the copyright in the site contents.
The obituary that Dawn Thomson wrote for her father and the accompanying photograph were reproduced without her knowledge or consent on Afterlife. Ms. Thomson brought an application for infringement of copyright and moral rights. Her request to have the action certified as a class proceeding was granted in July 2018.
Afterlife closed its website just after the class proceeding started and redirected traffic to a new website, which also posted obituaries and sold flowers and virtual candles in association with obituaries. This time the obituaries were not copied from elsewhere.
Ms. Thomson claimed copyright infringement and also argued that her honour and reputation were prejudiced by Afterlife associating her original work with advertisements, in violation of her moral rights. She believed that her honour and reputation were lessened because others would conclude that she was trying to profit from her father’s death.
Applying the test set out in CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13,  1 SCR 339, the Court had no trouble finding that the obituaries and photographs were original works in which copyright subsists. The Court held that the contents of Afterlife’s website evidenced that it copied the original works without consent and therefore infringed.
Afterlife linked the original works to a product or service by including the sale of advertisements, flowers and virtual candles for webpages showing obituaries. The Court noted that for there to be a violation of an author’s moral rights, the author must show not only that they subjectively consider that their honour or reputation has been prejudiced but also adduce objective evidence of such prejudice. The Court held that while Ms. Thomson genuinely felt that her honour and reputation have been prejudiced, there was no objective evidence, such as public opinion or expert evidence, to support an objective conclusion of prejudice. Consequently, the Court found that Afterlife had not infringed Ms. Thomson’s moral rights.
The Court awarded statutory damages of $10 million, finding that the amount was proportionate and stating that it “yield(s) a just result”. At first blush, the award appears significant, however, pursuant to section 38.1 of the Copyright Act, $5 per infringement is below the minimum statutory damages of $500 for per work for commercial infringement. The Court also awarded $10 million in aggravated damages to compensate the plaintiffs for intangible injuries, such as distress and humiliation, caused by Afterlife. The Court declined to award punitive damages in addition to these amounts, finding that a $20 million award was sufficient to deter Afterlife’s conduct.
This decision clearly cautions Canadian businesses against reproducing online content for commercial gain without authorization. There is a real risk of amplified damages being awarded where unauthorized reproduction occurs even for relatively short works from diverse authors.