Aga Khan Federal Court of Appeal Decision Fails to Address Burden of Proof

Last January, a Federal Court summary judgment held that the Aga Khan’s copyright in his literary works had been infringed by the publications of Nagib Tajdin and Alnaz Jiwa. The IPilogue drew attention to comments made in obiter stating that “it was not for a plaintiff in a copyright infringement suit to prove a lack of consent to the defendants’ publication.

Professor David Vaver’s previous IPilogue post discussed the problematic nature of this statement. Essentially, this would place the burden of establishing consent on the defendants while, conversely, the Copyright Act does not give the plaintiff the benefit of this presumption. Thus, the reasoning in obiter would require a defendant to show that he had the plaintiff’s consent as opposed to requiring the plaintiff to prove that he did not give his consent. Previous cases have rejected such a reverse onus.

The Federal Court of Appeal recently dismissed Tajdin and Jiwa’s appeal. The judgment does little to address the contentious reverse onus issue despite the main issue on appeal being whether the Aga Khan gave his consent. Further, among other submissions, the appellants argued that the trial judge “erred in holding that the onus to prove consent was on Mr. Tajdin and Mr. Jiwa.” While the court examined the issue of consent, it did not correct the lower court’s interpretation and seemingly ignores the issue altogether.

The reverse onus in proving consent is problematic in that it forces the defendant to prove a fact that is chiefly belonging to the plaintiff. The plaintiff is the one who knows whether consent was given and it is therefore too onerous to shift the burden to a defendant who is not privy to the inner workings of the plaintiff’s mind. This is supported by the absence of a reverse onus provision in the Copyright Act and the court’s avoidance of this issue is dangerous as a precedent.

The Appeal judgment also contained the concerning statement that consent “can be either express or implied”. The notion of implied consent in copyright is problematic due to its subjectivity. For example, merely assuming consent because the copyright owner has not expressly protested can lead to infringement and subsequently require owners to police their own works.

It will be interesting to note how these issues are addressed through future court decisions.

Nora Sleeth is a JD candidate at Osgoode Hall Law School.

  1. Hello Nora,

    Burden of proof was shifted on defendants the day on which defendants wasted the opportunity to perform discovery on plaintiff – during discovery no question was asked.

    Because of this reason trial court infer the negative inference on defendants.

  2. Hello Nora:

    In fact, the evidence showed that, upon the instructions of the counsel for the Agakhan, a full 30+ minutes of discovery was “off the record” and/or deleted from the transcript. Thus, if the Court could draw any inference regarding consent from the discovery, it would have to be against the Plaintiff.

    In this, as well as the trail court decision, our judges appear to be deferring to a popular and powerful litigant.

  3. Like Nora, I also was disappointed by the court’s ducking of the reverse onus issue, but courts sometimes do duck thorny issues when they can decide a case on other grounds or on the facts. It is admittedly a risky strategy not to call a plaintiff to give evidence personally to the effect that “I never consented to this” but it is nevertheless possible in law to infer a lack of consent from other facts – including what defendants say or do not say – without that personal evidence, as indeed would be necessary if, eg, a copyright owner had died before discovery or trial. The reverse onus point will however not go away – the Court of Appeal has just heard the appeal in a case I noted in the postscript to my case comment in 23 IPJ 147, 157, Harmony Consulting v Foss 2011 FC 340, that I think got the onus point right. Perhaps the court will decide the point in that case. I certainly don’t agree with the comment made in one of the posts above that the court somehow may have been influenced in its decision by the personality of the plaintiff. It would be an abdication of the judicial function to be influenced in that way, and there is no shred of evidence that this court was so influenced. It is hardly a novelty for a Canadian court to deal with a case featuring a powerful and personable party, and judges are by training and inclination able to discount that aspect as having no relevance to their decisions.

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