Copyright Infringement Claims in Small Claims Court

Can a copyright owner enforce his rights in small claims court? The answer varies depending on which side of the 49th parallel you are on. In Canada, yes! In the U.S., no. Perhaps this is about to change. The U.S. Copyright Office is accepting submissions from the public until 16 January 2012 on remedies for copyright infringement suits in small claims courts. U.S. Congress has asked the Copyright Office to investigate and seek comment on how small copyright claims have been managed in the past and to outline recommendations for changes and alternatives to current procedures.

This is not the first time this issue has arisen in the U.S. A report was tabled by the Copyright Office to the U.S. House of Representatives, 109th Congress, 2nd session on March 29, 2006. As part of their investigation of orphan works, the question of alternative mechanisms for pursuing copyright infringement cases was brought forward by photographers who had no resources to sue in federal court. In this report, the U.S. Copyright Office agreed to study the issue and to report to Congress the findings as to whether and to what extent copyright holders have been hindered from pursuing legal action and if the current system is not effective, what changes in law would be necessary. The report also outlined seven topics for information collection and also indicated four alternatives which might be available.

The advantage of small claims court is that it is often speedier than other courts and costs can be minimized since plaintiffs often represent themselves without the aid of a lawyer. You are only eligible to sue in small claims court if the monetary compensation being claimed is within a certain limit. For example, this amount is $25,000 in Ontario.



  1. Yes but expect that there would be a constitutional challenge under section 96 of the Constitution Act, and whether before 1867, copyright matters could be adjudicated before inferior courts presided over by provincially appointed judges.

    I haven’t checked the jurisprudence (most of which dates from the 1950s to 1970s) but my sense always was that this jurisdiction belonged to the Exchequer Court (latterly the Federal Court) with concurrent jurisdiction in the superior courts.

    Perhaps it’s time to revisit the Residential Tenancies reference.

  2. As Simon notes, it’s an interesting question that has not been satisfactorily answered as of yet. The case law indicates that the merging of the Small Claims Court into the Ontario Court (General Division) in the 1990s did not invest the provincially appointed court with s. 96 powers (Domtar Commercial Roofing and Insulation v. Exeter Roofing & Sheet Metal Co., 1993 CanLII 5563 (ON SC)), and it is likely that only federal legislation could do so since s. 96 courts had jurisdiction over copyright matters in 1867. However, I note that s. 37 of the Copyright Act says that “provincial courts” have concurrent jurisdiction. The same phrase is used in s. 92 of the Constitution Act, 1867 to describe what is in the exclusive jurisdiction of the provinces, but that has been interpreted as a reference to the s. 96 courts. So it’s a muddle, and who is likely to want to pay to unacramble it?

  3. The additional problem with using small claims courts is that you cannot get meaningful court orders there. So the only remedy to go after would be damages, which is not very helpful if the real goal is to stop an infringing use or obtain a declaration as to the ownership.

    Andrei Mincov