Extending Copyright to Computer Screenshots

The case of Davydiuk v Internet Archive Canada and Internet Archive (2016 FC 1313) has been part of the attempt of the Plaintiff, Mr. Davydiuk, to have adult video content removed from the internet; in 2002 and 2003, Davydiuk performed in two pornographic videos and in a series of unfixed performances which were broadcast live over the internet.

In 2003, Davydiuk decided that he no longer wanted to be associated with the pornography industry and undertook to secure the copyright in the videos so that he could ensure their permanent deletion.

To date, Davydiuk has been able to secure the copyright in the videos at issue, as well as secure copyright in all related material, including images and photos. As a result, Davydiuk was able to remove the online reproductions of the content and videos. However, in 2009, Davydiuk became aware of the fact that the Defendant, Internet Archive, was hosting some of this video content, namely, screenshots from the video, as part of its web archive collection. In his efforts to have all content removed, Davydiuk sought to have these screenshots taken from the video to be removed from Internet Archive. To this, Internet Archive refused to remove the content, arguing that it was not required to remove content for which copyright did not exist.

While the case itself has yet to be determined, the Federal Court has rendered a procedural decision and has drawn attention to the copyright issues at hand: are screenshots from video capable of copyright protection? I.e., is there sufficient originality in a screenshot taken from a video to extend copyright to that screenshot?

First principles in copyright law tell us that for copyright to extend to a work, the work must be “original”, and it must be more than a mere copy of another work.

To this, Internet Archive argued that the screenshots were an unoriginal copy of a work; that the screenshots were closely related to that of a photo taken of another photo, thus not original work.

However, what is also required to attract copyright protection is an exercise of skill and judgment in producing the work. This “skill and judgment” must involve intellectual effort, and cannot be so trivial that it could be characterized as a purely mechanical exercise.

Internet Archive argued that the screenshots were a mere unoriginal copy of a work requiring a trivial effort. In response, Davydiuk argued that sufficient “skill and judgment” went into the process of selecting and determining which screenshots to take and extract from the video.

The court is still waiting to assess all of the evidence, and has yet to render a decision as to whether screenshots are capable of supporting copyright protection. It is apparent that the matter will turn on whether there is evidence of “skill and judgment” in the decision-making process of which screenshots to take.