Date Issued: December 17, 2020

Files: SC-2020-006268
and SC-2020-007083

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Bjørnsen v. Sharpe, 2020 BCCRT 1425

Between:

CHRISTOPHER THOROLF BJØRNSEN

Applicant

And:

IAN STUART SHARPE

Respondent

And:

CHRISTOPHER THOROLF BJØRNSEN

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      These 2 disputes are about alleged copyright infringement. They involve the same parties. The applicant and respondent by counterclaim, Christopher Thorolf Bjørnsen, alleges the respondent and applicant by counterclaim, Ian Stuart Sharpe, published 2 of his artworks on social media without permission. In dispute SC-2020-006268, the applicant claims $5,000 in damages for alleged copyright infringement of one of the artworks. He also seeks an order that Mr. Sharpe cease using artwork from his book and website.

2.      In dispute SC-2020-007083, the applicant claims a further $4,999 in damages for alleged copyright infringement of the other artwork. He also seeks an order for Mr. Sharpe to cease using any of the applicant’s intellectual property for his own promotional purposes and attributes a value of $1 to this proposed remedy. The basis for the $1 claim is not specified.

3.      Mr. Sharpe says he did not infringe the applicant’s copyrights. He says the images he used were in the public domain and he did not know the applicant held copyright in them. He also argues his use of the images falls within the “fair dealing” exception to copyright infringement.

4.      Mr. Sharpe brought a counterclaim in dispute SC-2020-006268. In his counterclaim, Mr. Sharpe says the applicant published photographs of Mr. Sharpe and incorrectly attributed the copyright in them, allegedly infringing Mr. Sharpe’s own copyright in those photographs. Mr. Sharpe claims $4,999 in damages for copyright infringement. He also asks for an order that the applicant remove all unauthorized images from his social media and blog posts.

5.      The applicant advised the CRT that honorific titles such as “Mr.” are not ordinarily used in his culture. He did not otherwise indicate how he preferred to be referred to. Out of respect for his culture, I will refer to him in these reasons as “the applicant”.

6.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

8.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties to this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 28, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

9.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

10.   Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

Are the claims within the CRT’s monetary limit?

11.   The CRT’s jurisdiction over claims for debt and damages is limited to $5,000. The applicant filed 2 claims for damages, which if combined would exceed $5,000. Although the parties did not raise this as an issue, I have considered whether the claims in each dispute are sufficiently distinct to attract their own monetary limit.

12.   I note that the applicant seeks statutory damages for copyright infringement under section 38.1 of the Copyright Act (CA), which provides for separate damages to be awarded for each infringed work: see Piechnik v. McFarlen, 2016 BCPC 245 at paragraph 25. The applicant is alleging that Mr. Sharpe infringed the copyright of 2 separate pieces of artwork. If successful, I find the applicant would potentially be entitled to separate statutory damages for each work under the CA. On balance, I find the alleged copyright infringement of each work is a separate claim and, therefore, the applicant’s 2 claims do not exceed the CRT’s monetary small claims limit.

Request to provide evidence “in camera”

13.   In his submissions, Mr. Sharpe requested the ability to provide additional evidence “in camera” (privately) due to threats he says he has received from the applicant. However, Mr. Sharpe did not describe or provide any evidence of the alleged threats, and it is unclear how producing his evidence would impact his safety.

14.   Under CRT rule 8.1 a party must include all evidence in their possession that may prove or disprove an issue in the dispute. It would be a significant departure from any usual court or tribunal procedure for the decision maker to receive and consider evidence from a party that was not shared with the other party. I find there is insufficient evidence to determine that such an extraordinary remedy is necessary in this case. I dismiss Mr. Sharpe’s request to provide his evidence “in camera”.

Injunctive relief

15.   In addition to damages for copyright infringement, each party seeks an order that the other remove images that are the subject of this dispute from their respective social media and other websites, or to cease using their copyrighted materials. Ordering someone to do or not do something is known as injunctive relief. This type of relief is outside the CRT’s small claims jurisdiction except where permitted by section 118 of the CRTA. I find that the relief sought by the parties is not included in the scope of section 118, and therefore decline to consider these remedies. I will address whether either party has infringed the other’s copyright in the subject materials below.

ISSUES

16.   The issues in both disputes are essentially the same, although they relate to different artworks. They are:

a.    Did the applicant hold the copyright to each of the subject artworks?

b.    If so, did Mr. Sharpe infringe the applicant’s copyright and what, if any, are the appropriate damages?

17.   In the counterclaim, the issues are:

a.    Did Mr. Sharpe hold the copyright to the subject photographs of himself?

b.    If so, did the applicant infringe Mr. Sharpe’s copyright and what, if any, are the appropriate damages?

EVIDENCE AND ANALYSIS

18.   In a civil claim like this one, the applicant must prove his claims on a balance of probabilities. Mr. Sharpe must prove his counterclaim on the same standard. I have only addressed the evidence and arguments to the extent necessary to explain my decision. Mr. Sharpe chose not to make any submissions or submit any evidence for dispute SC-2020-007083, but specifically relied on his submissions in dispute SC-2020-006268 for both disputes.

Copyright ownership

19.   The applicant says he authored a book called “Úlfheimr: The Tenth World”, originally written in Old Norse and published in Norway (the book). I find from the photograph of the book’s title page in evidence, that the applicant is the book’s author. He says the book has been translated into English and is available in both hardcover and an ebook version. I find that the 2 artworks that the applicant claims Mr. Sharpe infringed his copyright in, appear in the book.

20.   The first artwork, which is the subject of dispute SC-2020-006268, is called “Wild Hunt”, and is an illustration of the god Odin from Norse mythology. The photograph of page 192 of the book shows the illustration with what the applicant describes as an Úlfheimr logo and watermarks on the top and bottom righthand corners of the illustration. In the illustration’s bottom left corner is the copyright symbol before “ulfheimr.no” and the phrase “all rights reserved”.

21.   The second artwork, which is the subject of dispute SC-2020-007083, is an illustration of “Skadi”, a goddess associated with winter and skiing in Norse lore and culture. The photograph of page 244 of the book shows this illustration also has an Úlfheimr logo in the top left corner and the copyright symbol before “ulfheimr.no” and “all rights reserved” in the bottom left corner.

22.   I do not accept Mr. Sharpe’s argument that the question in these disputes is whether copyright in the book has been infringed (that is, whether copying only the 2 illustrations out of a 258-page book constitutes copyright infringement in the book). Rather, I find copyright exists in each of the subject illustrations as separate artworks.

23.   Copyright in Canada is governed by the CA. Section 3 of the CA defines “copyright” as the sole right to produce or reproduce a work or any substantial part of it in any material form. In the case of an artistic work, this includes the sole right to communicate the work to the public by telecommunication. Section 5 of the CA says that copyright subsists in every original work created or published in any “treaty country” (which refers to signatories to the Berne Convention). Norway is such a treaty country.

24.   Under section 13 of the CA, the work’s author is the first owner of the copyright, but an owner of copyright in a work can assign or licence the right to someone else. Section 27(1) of the CA says that it is an infringement of copyright for any person to, without the copyright owner’s consent, do anything only the owner of the copyright has the right to do. Section 27(2) of the CA says it is an infringement of copyright for any person to distribute a copy of a work the person knows or should have known infringes copyright (this is called “secondary infringement”). As noted above, the applicant claims statutory damages for copyright infringement found in section 38.1 of the CA.

25.   It is unclear on the evidence whether the applicant himself or another artist originally created the subject artworks. However, nothing turns on this because I find the weight of the evidence suggests that the applicant held copyright in the 2 illustrations, regardless of who the original creator was. The copyright information displayed on the artworks in the applicant’s book, suggests that “ulfheimr.no” holds the copyright in the subject illustrations. Based on the evidence filed, I find that “ulfheimr.no” is a domain name for a website dedicated to the book, and that the applicant is the registered owner of the “ulfheimr.no” domain. While I find that a domain name is not a person or legal entity that can hold a copyright, marking the artworks with this name and the phrase “all rights reserved” provides notice of existing copyright in the works.

26.   Here, given the applicant’s ownership of the domain name, and as the author of the book where the artworks appear, I find that the applicant held the copyright in the artworks at the time the book was published. While the book’s publishing date was not in evidence, there is no evidence before me that the applicant assigned or exclusively licensed the copyright in the illustrations to anyone after the book was published. Therefore, on balance, I find the applicant owned the copyright in the subject artworks at the time of the alleged infringements.

27.   I turn now to the applicant’s allegations of copyright infringement in the illustrations.

Copyright infringement

28.   The applicant alleges that Mr. Sharpe “stripped” the artworks of the logos, watermarks, and copyright information contained on the illustrations in his book and posted them on his Facebook page without permission and for a commercial purpose. Mr. Sharpe does not dispute that he posted the applicant’s artworks to his Facebook page. However, he denies altering them and says he found them on the internet with no copyright information attached. Mr. Sharpe says he did not know the applicant held the copyright in the illustrations. He also argues that his use of the artworks constitutes a “fair dealing” exception to copyright infringement.

29.   The evidence shows that Mr. Sharpe writes Viking-based novels and comics. He also maintains a Facebook page called “Vikingverse”, which is undisputedly the same name as Mr. Sharpe’s book series. While the applicant says Mr. Sharpe’s Vikingverse Facebook page is dedicated to the sale of his books, Mr. Sharpe argues that he posts daily to his 15,000+ followers on Facebook about a wide range of news, events, and information in the Viking genre.

30.   Mr. Sharpe admits, and the evidence shows, Vikingverse’s August 13, 2020 post was of the applicant’s “Wild Hunt” artwork with a caption describing what the illustration depicts, among other comments, and included a link to a crowd-funding campaign Mr. Sharpe had launched for a new book project. There is undisputedly no attribution of the artwork’s copyright owner on Mr. Sharpe’s post.

31.   On August 14, 2020, Mr. Sharpe says he received an email from the applicant advising that he had started this CRT dispute for alleged copyright infringement related to his post. Mr. Sharpe says he immediately removed the subject image, which was within 18 hours of originally posting it.

32.   The applicant says that on September 12, 2020, he received an anonymous tip that Mr. Sharpe had also posted the applicant’s “Skadi” artwork on the Vikingverse Facebook page. The screenshot of Vikingverse’s February 23, 2019 post shows the “Skadi” artwork posted with a caption describing the goddess and a mythological tale. The post does not appear to specifically refer or link to any commercial endeavor. Again, the post did not include information about the artwork’s copyright owner.

33.   The applicant filed a September 13, 2020 email from Facebook confirming that in response to the applicant’s complaint of copyright infringement, Facebook had removed “the content”, which I infer refers to the applicant’s “Skadi” illustration. There is no evidence before me that the applicant otherwise contacted Mr. Sharpe to advise him of his alleged copyright infringement of “Skadi” before bringing this dispute.

34.   So, were Mr. Sharpe’s posts an infringement of the applicant’s copyright in the artworks? For the following reasons, I find that they were not.

35.   First, Mr. Sharpe says that because he found the artworks on the internet with no copyright information attached, they were in the public domain and free to use.

36.   The applicant admits that the subject artworks appear on Instagram, Pinterest, and other social media pages and websites dedicated to the book, and have also been used online, with permission, by organizations the applicant is affiliated with. However, the applicant says that they always include a watermark, logo, or copyright information when used. Therefore, he argues Mr. Sharpe must have stripped the artworks of the logos and watermarks contained on the illustrations in his book.

37.   Mr. Sharpe provided evidence that “Wild Hunt” was posted on the Pinterest website by someone other than the applicant or his noted affiliated organizations. This version of the artwork appears to be already “stripped” of any watermarks, logos, or copyright information. Mr. Sharpe says this is the copy he used, and he was unaware that copyright existed in it.

38.   As noted above, Mr. Sharpe chose not to file any evidence specifically about the allegations pertaining to the “Skadi” work. Nevertheless, I find the applicant’s assertion alone that Mr. Sharpe himself stripped the illustrations is insufficient to prove this allegation. Given that the artworks appear on other websites (with permission), I find the watermarks, logos, and copyright information on the artworks could have been removed by anyone and posted “clean” on Pinterest or any other website. This does not mean the applicant’s illustrations are “in the public domain” and free for all to use. However, I accept Mr. Sharpe’s submission that he did not in any way alter either of the applicant’s artworks himself or remove the copyright information before posting them on his Facebook page.

39.   While I find Mr. Sharpe was not responsible for the primary copyright infringement, I must still consider whether his use of the applicant’s artworks constitute secondary infringement under section 27(2) of the CA. There are 3 elements necessary to prove secondary infringement: (1) that the work was the product of primary infringement, (2) the alleged secondary infringer must know that the copy is the product of primary infringement, and (3) the secondary dealing (distribution of the work) must be established: CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 at paragraph 81.

40.   I accept the applicant’s submission that there are no authorized copies of his artworks posted on the internet without a watermark, logo, or copyright information attached. Therefore, I find the “clean” copies Mr. Sharpe used were the product of primary infringement. I also find that Mr. Sharpe distributed the artworks by posting them on his Facebook page. So, the question is whether Mr. Sharpe knew or had any reason to know that the copies he used were the product of primary infringement.

41.   On the applicant’s own submission, the book where the artworks appear is “exclusive”, and its sale is purposely restricted. The applicant also provided evidence of his own “reverse image search” of “Wild Hunt” on Google, which returned only 4 images, each with the logo, watermark, and copyright information attached. I infer the applicant’s submission is that Mr. Sharpe must have used one of these authorized images, so he must have been aware there was copyright in it. However, I have found above that there were “clean” versions of both artworks posted on the internet, which Mr. Sharpe used. Given the limited circulation of the authorized versions of the artworks containing the copyright information, on balance I find it is unlikely Mr. Sharpe saw or was aware of the artworks with their copyright information attached.

42.   Further, I note that upon being notified about his potential infringement of the copyright in “Wild Hunt”, Mr. Sharpe immediately removed it from his Facebook post. Contrary to the applicant’s submission, I find it is illogical to conclude that Mr. Sharpe knowingly continued to infringe the applicant’s copyright in “Skadi”, after the applicant had already started a CRT dispute concerning “Wild Hunt”. On balance, I find that Mr. Sharpe was unaware that copyright existed in the 2 illustrations he posted or that the “clean” versions of the illustrations he used were themselves the product of copyright infringement. Therefore, I find the applicant has not proven Mr. Sharpe’s posts constitute secondary infringement of the applicant’s copyright.

43.   Overall, I find the applicant has not proven Mr. Sharpe infringed the applicant’s copyright in the subject artworks. Given this finding, I find it unnecessary to address Mr. Sharpe’s argument that his use of the artworks falls under the “fair dealing” exception to copyright infringement. I dismiss the applicant’s claims.

44.   I turn now to Mr. Sharpe’s counterclaim.

Counterclaim

45.   In his counterclaim, Mr. Sharpe says the applicant published photographs of him (Mr. Sharpe) on social media and other websites. Mr. Sharpe says that his wife took most of the photographs and one was taken by a shop owner during a festival in England. Mr. Sharpe claims that the applicant incorrectly attributed the copyright in the photographs to Mr. Sharpe’s publisher or another website where the applicant sourced the photos.

46.   I find that Mr. Sharpe has not established that he owned the copyright in the subject photographs. Given his wife or another unnamed, and potentially unknown, individual took the photographs in issue, I find Mr. Sharpe was not their original creator and he is therefore not the first owner of the copyright in them. There is no evidence before me that Mr. Sharpe’s wife or the unknown photographer assigned or licensed the copyright in those photographs to Mr. Sharpe.

47.   However, even if Mr. Sharpe did own the copyright in the photographs of himself, I find that he has not proven the applicant used or published the photographs, as alleged. Mr. Sharpe says the photographs were published in articles written about this dispute, yet he did not file copies of the articles in evidence. Therefore, it is impossible to determine whether the photographs were published by the applicant at all. From the parties’ submissions, it appears that each of the alleged articles was published on the Helluland News website. There is no evidence before me that the applicant wrote the articles or is in any way affiliated with Helluland News.

48.   Mr. Sharpe says that social media accounts for a United States company that the applicant is a director of posted links to the Helluland News articles. Even if I found that posting a link to an article constituted “publishing” the article or the attached photographs, I find there is no evidence that the applicant should be held personally liable for a corporation’s social media post, simply because he is a director of the company.

49.   On balance, I find Mr. Sharpe has not proven copyright infringement of the subject photographs. I dismiss Mr. Sharpe’s counterclaim.

CRT FEES AND EXPENSES

50.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason to depart from the general rule here. Both the applicant and Mr. Sharpe were unsuccessful in their claims and counterclaim. Accordingly, I find that neither party is entitled to reimbursement of CRT fees or dispute-related expenses.

ORDER

51.   I dismiss the applicant’s claims, Mr. Sharpe’s counterclaim, and these disputes.