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

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.