Federal Court

Intellectual Property


Material in which copyright may subsist

Circumventing technological protection measures constituting copyright infringement

Applicant was video game manufacturer N. N claimed that respondent company G had circumvented its technological protection measures (TPM’s). N claimed that these actions allowed users to play unlicensed copies of N’s games on G’s devices. N’s games were copyrighted either in Canada or United States. N brought action for damages for copyright infringement, and for anti-circumvention. Action allowed. G admitted infringement of data, which was one of N’s 3 claims. Unauthorized material was present on devices sold by G. Parliament specifically contemplated actions similar to that of G, in drafting amended legislation. Parliament intended legislation to apply to all technological areas, including games. Fact that G only used partial replication of TPM was not defence to action. Owners of N’s systems already had access to operating system and authorized games. G could not rely on already available access to justify its use of N’s TPM’s. G had clearly trafficked in circumvention devices, making these widely available online and in their store. G profited off work of N in creating and marketing games and systems, over many years.

Nintendo of America Inc. v. King (2017), 2017 CarswellNat 650, 2017 FC 246, Douglas R. Campbell J. (F.C.).


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