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Web Design Contract Includes Implied Copyright License

Mathieu-Crochetière Brousseau v. 9107-0234 Québec Inc. (Grattex), 2015 FC 1219 was a failed action for copyright infringement of a computer program. The defendant, Grattex, hired the plaintiff to design an improved website for Grattex’ business. Creation of the website proved more complicated than originally anticipated and, although the website was ultimately delivered and put into use, it allegedly did not meet the requirements set out in the contract. After a series of exchanges, the defendant ultimately refused to pay for the website and hired a new designer to fix it.

The website designer brought an action for copyright infringement, arguing that the website was a “work” protected under the Copyright Act and that the defendant violated her rights by using the site without paying the agreed fee and also by subsequently implementing a new website that substantially copied her programming.

Justice LeBlanc found that the computer program was a “literary work” subject to protection under the Copyright Act. The contract between the parties was silent as to copyright, however, the Court held that it necessarily involved an implied authorization to use the computer program and, as a result, there was no copyright infringement.

The Copyright Act strikes “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” Justice LeBlanc held that the contract provided for the creation of a “work” through compensation freely agreed between the parties and that this constituted a “just reward for the creator”. Without an implied license, the defendant would never be able to use or improve its own website except through the applicant. It would make no commercial sense if the defendant was not allowed to use the “work” for the purposes for which it had been commissioned and to later make improvements to its website.

The plaintiff had not been paid for her work. However, the Court held that this fell under the realm of contract law, not copyright. The Copyright Act did not assist the plaintiff and, since the plaintiff had only pleaded copyright infringement, the action was dismissed.

A copy of the Court’s decision, in French, can be found here.