In a recent case, the Immigration and Refugee Board of Canada came to a decision that could potentially raise the stakes of committing copyright infringement by coming to the conclusion that carrying out certain copyright infringements outside of Canada can lead to inadmissibility under the Immigration and Refugee Protection Act.

Case summary

In the 2024 case, Ullah v Canada (Public Safety and Emergency Preparedness), the Immigration and Refugee Board of Canada (the “Board”), found a permanent resident applicant (the “Applicant”) inadmissible to Canada under section 36(2)(b) of the Immigration and Refugee Protection Act (the “Act”) due to the individual having committed copyright infringement abroad.

Section 36(2)(b) of the Act reads:

A foreign national is inadmissible on grounds of criminality for (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament[.]

The Applicant had been convicted in Portugal on three separate occasions for “exploitation of usurped work” under articles 199, paragraph 1, and paragraph 197 of the Code of Portuguese Copyright and Related Rights (the “Code”). It was argued that this code was equivalent to section 42(1) of the Copyright Act, which is an indictable offence.

In its decision, the Board compared the applicable sections of both the Code and the Copyright Act word for word and agreed with the argument that the relevant sections at play in the Code are equivalent to section 42(1) of the Copyright Act. The Board ultimately found that the copyright infringement offences, if committed in Canada, would be an offence as defined by section 42(1) of the Copyright Act. The Applicant was therefore deemed inadmissible due to criminality.

Key takeaways

This is not the first time that the Board has found an applicant inadmissible to Canada for violating intellectual property laws abroad, but it the first instance where it has done so due to copyright infringement.

In the 2019 case, Lizarazo-Florez v Canada (Citizenship and Immigration), the applicant was found inadmissible for infringing trademarks and patents in Colombia, the act of which was equivalent to a violation of section 52 of the Competition Act. Significantly, the Board made it clear in that case that the foreign provision does not have to perfectly match in language or use exact synonyms in order for equivalence to be found by stating in paragraph 9 that:

“It is not necessary that the text of the foreign statute match the text of the Canadian offence. Equivalency may exist if the essential ingredients of the Canadian offence have been proven in the foreign proceedings, regardless of the actual scope of the foreign statute.”