Canada: Permanent Injunction Issues Restricting the Unauthorized Distribution of the Aga Khan’s Addresses and Writings

On January 7, 2011, Justice Harrington of the Federal Court granted summary judgment in favour of His Highness Prince Karim Aga Khan, declaring that two defendants infringed the Aga Khan's copyright and permanently restrained them from publishing and selling unauthorized copies of the Aga Khan's religious addresses and messages.

The Aga Khan, the spiritual leader of the Shia Imani Ismaili Muslims, regularly gives advice and guidance to his followers on both religious an temporal matters by various means including Farmans (addresses given before an audience) and Talikas (brief written religious messages). The Defendants collected, published and sold books of the Aga Khan's Farmans and Talikas as well as MP3 audio recordings of addresses given by the Aga Khan. After the Defendants failed to cease publication and distribution of the Farmans and Talikas following a request from the Aga Khan, the Aga Khan commenced an action in the Federal Court of Canada for copyright infringement seeking, among other things, a permanent injunction restraining the Defendants' activities.

The Defendants admitted that the Aga Khan owns the copyright subsisting in the Farmans and Talikas. However, they asserted that the Aga Khan had consented to their publication and distribution of the Farmans and Talikas both explicitly, during a ceremonial blessing of a third party received from the Aga Khan, as well as implicitly in speeches and interviews given by the Aga Khan and by changes made to the Ismaili Constitution. The Defendants also raised an alternative defence of latches, arguing that the Aga Khan had acquiesced to their activities. Both the Defendants and the Plaintiff moved for summary judgment.

Burden of Proof: Infringement and Consent

Pursuant to the Copyright Act, infringement is defined as doing anything, without the consent of the owner, that by the Act only the owner of the copyright has the right to do. Based on the statutory definition and the decision of the Federal Court of Appeal in Positive Attitude Safety Systems Inc. v. Albian Sands Energy Inc., the Defendants argued that the Aga Khan had to prove that no consent was given to the Defendants in order to establish infringement.

In Positive Attitude, the Court of Appeal reviewed a motion for summary judgment concerning copyright infringement as well as trade-mark based allegations. The lower Court found that there was copyright infringement, subject to the possibility that the conduct complained of was authorized by a licence, an issue that would be decided later at trial. The Court of Appeal reversed this finding, with Justice Pelletier stating: "proof of copyright infringement requires proof of lack of consent. It is therefore illogical to conclude that there has been infringement, subject to the effect of a purported license. It may be that a party has done something which, by the terms of the Copyright Act... only the owner of the copyright may do. But, before that conduct can be defined as infringement, the judge must find that the owner of the copyright did not consent to that conduct."

Justice Harrington explained Justice Pelletier's comments holding that, contrary to the Defendants' assertion, the Court of Appeal's decision in Positive Attitude does not hold that the burden rests on the Plaintiff to prove that no consent was given in order to make out allegations of copyright infringement. Rather, Justice Harrington confirmed that "[t]he case stands for the proposition that one cannot bifurcate [issues of] infringement from consent." Justice Harrington found that as consent is a defence to copyright infringement, the burden of proving consent lies upon the Defendants.

Justice Harrington held that the Defendants had failed to show that the Aga Khan had consented to their activities or that the Aga Khan personally knew of their activities and had acquiesced. In particular, the Judge found that although the Aga Khan presented himself for discovery, the Defendants failed to conduct a meaningful examination which would have potentially provided them with evidence supporting their defence.

Summary Judgment

Noting that summary judgment motions are "but one of several means at the Court's disposal to control its own process and to carefully husband a non-renewable resource: courtroom time", Justice Harrington found that "it is in the interest of justice and judicial economy to dispose of this action by way of summary judgment."

The Aga Khan was represented by Brian Gray and Allyson Whyte Nowak of Ogilvy Renault LLP.

Link to Decision: Aga Khan v. Tajdin, 2011 FC 14

About Ogilvy Renault

Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, Calgary and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at www.ogilvyrenault.com.

Ogilvy Renault joins Norton Rose Group on June 1, 2011.

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