Turkish television drama ends with close to $6M in copyright damages

The Federal Court awarded close to $6M in statutory damages to Yelda Haber Ve Görsel Yayincilik A.S., one of Turkey’s largest broadcasters, for copyright infringement of 22 television programs (2,974 episodes) and a live television channel. A copy of the decision is available here.

Background

The Defendants, GLWiZ Inc. and Gold Line Telemanagement Inc. are Canadian companies that offer an IPTV service that provides on-demand and linear streamed programming.

Starting in 2012, the Plaintiffs entered into a limited license with a third party, General Entertainment and Media, Co., which granted GEM Media a limited right to dub/subtitle a set number of episodes of some of the Programs into Farsi, to be broadcast within Iran only. The licenses expired at the end of 2017 and were not renewed.

The Plaintiffs successfully sued GEM Media for copyright infringement of the Programs and Live Channel. Following an undefended summary judgment motion, the Federal Court awarded $10,000 per episode, for a total award of $27,290,000 (2024 FC 1127).

The Plaintiffs never entered into a business relationship with the Defendants, although the Defendants sought a license and met with the Plaintiffs in 2017.

However, the Defendants entered into agreements in 2012 and 2013 with GEM Media that purported to license content including the Programs and Live Channel. GEM Media attempted to terminate the agreement in 2015. The licensing dispute between the Defendants and GEM Media was considered by the Federal Court in Court File No. T-410-21, but the action was stayed in favour of arbitration in Bermuda (2022 FC 418).

Prior to trial, the Defendants admitted infringement of the Programs and Live Channel during the Relevant Period of 2018-2022. The remaining issues before the Court were statutory damages, punitive damages, injunctive relief, and costs. The Court also addressed evidentiary issues, which are not discussed in this post.

Statutory Damages

The Plaintiff sought $15,000 CAD per episode of the Programs and $20,000 CAD for the Live Channel, for a total award of $44,630,000 CAD.

Meanwhile, the Defendants argued for statutory damages lower than $500 per work (the minimum under s 38.1(1)(a) of the Copyright Act) because they were “innocent infringers” (under s 38.1(2)), and because an award of over $44M was “grossly out of proportion to the infringement” (under s 38.1(3)).

Innocent Infringer

The Court found no merit in the Defendants’ assertions that they were unaware of their infringing activities and the Plaintiffs’ notices of infringement were a “moving target”, noting “this Court has taken a dim view of infringers who attempt to shift blame to rights holders.”

The Court also found the Defendants had no reasonable grounds to believe they were not infringing copyright or had a valid licence from GEM Media.

Moreover, the Defendants were put on notice by the Plaintiff that they did not have any rights to the Plaintiff’s content as of November 2017, when the parties met in Istanbul.

Quantum of Damages

The Court considered “all relevant factors”, according to s 38.1(5), which it determined to include: the Plaintiffs’ actual damages, the Defendants’ revenues, the bad faith/conduct of the Defendants, and the need to deter other infringements of the copyright in question.

Plaintiffs’ Damages: The Plaintiffs’ argued that their damages included the lost opportunity to monetize the Programs for the Farsi-speaking population outside of Iran, including through (a) licence fee revenues; (b) revenues earned through a Farsi service similar to the Spanish service operated by Plaintiffs; and (c) additional revenues from a YouTube channel.

The Plaintiffs provided evidence that they typically licensed content for no less than $10,000 USD per episode, plus a share of advertising revenue, and additional fees for dubbing/translating content, with a one-to-two year term. The Court also considered the GEM License, but noted differences from Defendants’ infringing activities in terms of territory, term, and length of the episodes.

The Court highlighted the lack of evidence on comparable licenses, the Plaintiffs’ net profits, lost revenues that could have been earned from a Farsi service, and lost revenues from YouTube that could be attributed to the Programs.

The Court accepted that the Plaintiffs lost control over the Programs and Live Channel as a result of the Defendants’ conduct, which exposed them to a risk of piracy and potential liability from third parties.

Defendants’ Revenues: The Court considered the Defendants’ revenues during the Relevant Period, which the parties agreed were $65,000 CAD or less. While the Plaintiff challenged the reliability of the Defendants’ evidence, it was bound by its admission in the Revised Agreed Statement of Facts. Moreover, the Court found the Plaintiffs’ evidence about a CRA issue to be inadmissible or entitled to no weight.

Bad Faith/Conduct of the Defendant: The Court found the Defendants’ conduct could not be characterized by bad faith. It considered the Plaintiffs’ allegations that the Defendants acted in bad faith, for example, by failing to stop infringing when told to do so, painting GEM Media as the “villain”, and only admitting infringement after the first trial date was adjourned.

In the Court’s view, it defied common sense why the Defendants did not verify the validity of their license from GEM Media in the face of the Plaintiffs’ allegations. It nonetheless found that the Defendants did not entirely ignore the Plaintiffs’ 2019 Cease and Desist Letter.

The Court also found the Defendants’ abrupt change in position on infringement was worthy of consideration in quantifying statutory damages.

Need for Deterrence: The Court found statutory damages must be significant enough to deter others who may wish to engage in similar illicit activities (using preloaded set-top boxes, apps, and the internet to infringe copyright) and also to deter these Defendants from resuming such activities.

Not Grossly Out of Proportion

The Court declined to reduce statutory damages below $500 per work, per s 38.1(3), as the Defendant did not demonstrate that a higher award would be grossly disproportionate in all of the circumstances.

The Court considered the ~$27M GEM Judgment, in which Justice Whyte Nowak found infringement of the same Programs during approximately the same timeframe. However, GEM Media did not participate in the summary judgement motion.

The Court found that $2,000 per work was justified, plus $10,000 for the Live Channel due to the need for deterrence. The total of statutory damages was therefore $5,958,000 CAD.

The Court also awarded pre-judgment and post-judgment interest in line with the Ontario Courts of Justice Act, as it found the percentages reasonable, regardless of whether the action could properly be construed as arising in Ontario.

Punitive Damages/Injunction

The Court declined to award punitive damages because the statutory damages award already sufficiently fulfilled a punitive and retributive function.

Similarly, the Court declined to grant a wide injunction because the Plaintiffs had not satisfied the Court that they were the owners or licensees of each of the Programs.