May 12, 2020
Albo v The Winnipeg Free Press et al 2020 MBCA 50

Three issues were raised in the appeal. First was a question of contractual interpretation as to the nature and terms of the contract. Second was the concern raised that the judge did not adjudicate the contract claim independently of the copyright claim. Third was the matter of the defendant’s performance of the contract in good faith.

The plaintiff’s argument that this was a limited licence contractual agreement mixes concepts of copyright law and contract law. The differences in these areas of law must be respected.

Contractual interpretation:

…the plaintiff has not established that the judge made a palpable and overriding error in failing to consider the January 30th statement about possible royalties to be an essential term of the contract.

Adjudication of the Contract Claim Independent of the Copyright Claim:

The judge did not commit an error in principle in the course of interpreting the contract by requiring the plaintiff to prove copyright as a prerequisite to a successful contract claim.

Good Faith Performance of the Contract:

…I have not been convinced that the judge made a palpable and overriding error in deciding that the defendant acted in good faith in performing the contract.

The appeal was dismissed.