A lawyer for filmmaker Gary Charbonneau Beddoes said the footage removed from the film includes two minutes of Qila, a beluga whale, swimming on her own. Qila died of an unknown cause in November.John Lehmann/The Globe and Mail
A man who directed a low-budget documentary critical of the Vancouver Aquarium should not have been ordered to remove five minutes of footage by a judge, his lawyer told an appeal court Monday.
But a lawyer for the aquarium called the lower-court judge's decision "balanced" and denied the facility was trying to silence criticism.
Gary Charbonneau released the documentary, Vancouver Aquarium Uncovered, online in January, 2016. The 61-minute film examined the aquarium's practice of keeping beluga whales and dolphins in captivity.
The aquarium filed a lawsuit against Mr. Charbonneau, Evotion Films and two unnamed others in February, 2016, alleging copyright infringement and breach of contract. It did not file a claim for defamation.
A trial date has not been set, but the aquarium was granted an injunction last April, with Mr. Charbonneau ordered to remove 15 segments of the film.
Mr. Charbonneau's appeal of that injunction was heard at the B.C. Court of Appeal on Monday.
Arden Beddoes, one of Mr. Charbonneau's lawyers, told the three-judge panel his client developed a "political and social commentary … on a subject of obvious public and political interest."
He said Mr. Charbonneau's work goes to the core of free expression and that expression should only be restrained in the most exceptional cases.
"You simply cannot accurately and fully criticize the aquarium's practices without actually showing images and video of the aquarium," he said.
Mr. Beddoes said the footage removed from the film includes two minutes of Qila, a beluga whale, swimming on her own. Qila died of an unknown cause in November.
Mr. Beddoes argued the aquarium has not established it owns the copyright on the material in the documentary, nor has it proved it suffered any harm. He said such footage can be used for research and education purposes.
Daniel Burnett, one of the lawyers representing the aquarium, told the appeal court the facility has been "trying to do nothing but deal with its intellectual property and the breach of contract."
He said the lower-court judge carefully examined the facts and her ruling requires deference.
Mr. Burnett said even without the 15 segments, the film still conveys its criticism of the aquarium. The facility has described the film as inaccurate and misleading.
Mr. Burnett said four of the segments that were ordered removed from the film include footage Mr. Charbonneau told the aquarium he would not use.
Mr. Charbonneau has said he had an agreement with the aquarium on when he could film at the facility, but the aquarium breached it by refusing to allow him to film the belugas and dolphins. He said the aquarium also failed to provide adequate interview time.
The aquarium's notice of civil claim initially called for an order requiring the film be removed from the Internet altogether.
Bryan McLean, who represented the intervenor Animal Justice at the appeal court hearing, said the organization was concerned about the effect the injunction could have moving forward.
"Animal Justice has grave concerns about the impact upholding this preliminary injunction on copyright grounds … could have on future publications [from animal-rights advocates]," he said.
Mr. McLean said releases of information that could be impacted include photos from whistle-blowing employees.
The BC Civil Liberties Association also intervened in the case, with its counsel citing concerns about freedom of expression as well.
The appeal court panel reserved its decision and did not indicate when a ruling might be issued.
The Vancouver Park Board earlier this month voted to ban cetacean captivity at the aquarium. It directed staff to develop a bylaw amendment that would prohibit the importation and display of live cetaceans.
The aquarium said it was "deeply disappointed" with the vote.