Leuthold v CBC: ‘industry practice’ in interpreting contracts
By Bob Tarantino
When, if ever, can ‘industry practice’ be used in interpreting contracts? That question is of particular relevance in the entertainment industries, as each facet of those industries (such as film, TV, music, book publishing and videogames) has its own jargon, standards and conventions, some of which are, if not contradictory, at least not obviously compatible (as an example, the term ‘publishing’ has very different connotations as between the ‘worlds’ of music, book publishing and film). If the parties to a contract come to the contract from different ‘worlds’, and they have different understandings of what a term in a contract means, whose understanding should prevail?
A couple of years ago, in a post entitled Leuthold v CBC: damages for copyright infringement, I noted the Federal Court decision in Leuthold v CBC (2012 FC 748). As the title of that post indicated, the post focused on how the court in that case calculated the damages payable for copyright infringement when the CBC made unauthorised use of photographs in a documentary. I wrote at the time that the ‘decision goes into great detail about the various negotiations and conflicting understandings of the parties — potentially interesting in their own right but of limited application beyond the bounds of these particular disputants’. I think I got that wrong, and I’d like to revisit the case now with particular reference to the issue of industry standards. A couple of weeks ago, the Federal Court of Appeal released its decision in the appeal of the matter (2014 FCA 173) (spoiler alert: the CBC won again), and in reading the decision of the appeals court I was struck by the fact that a portion of the decision seems to turn in large part on how to handle ‘industry practice’ when interpreting contracts…
Click on the link below to read the rest of the Dentons briefing.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from Dentons
News from The Lawyer
Briefings from Dentons
Verity Buckingham of Dentons discusses the key changes to UK immigration rules, including the increase in fees for immigration applications and the reduction of visitor visa routes.
Less than one month remains to the deadline for filing 2014 tax returns in Russia.
Analysis from The Lawyer
Life in Canada is getting harder for firms as commodities prices fall and work volumes slow
Which firms are cutting it in this era of slimline rosters, and who are the GC new brooms making clean sweeps? The Lawyer can reveal all