After hearing a landmark series of five copyright cases in
December 2011, the Supreme Court of Canada has recently granted
leave to appeal in another four. At issue: whether an animated
television series based on the well-known novel, Robinson
Crusoe, infringed copyright in another proposed series based
on the same underlying work and developed by some of the parties to
whom the first series had been pitched. These cases will require
the Court to consider, and perhaps to clarify, the legal question
of when a "substantial part" of a work has been
reproduced, infringing copyright. The Court will also look at the
principles that animate the assessment of damages in copyright
infringement cases.
The history of all four cases – Robinson v. France
Animation, Izard v. Robinson, Weinberg v. Les Productions
Nilem and Cinar Corporation v. Robinson –
began when Claude Robinson, a Montreal artist, created a series of
sketches and character creations for a projected children's
television series called Robinson Curiosité.
Robinson then proceeded to develop the proposed series further over
a number of years, pitching it to a series of different television
production companies (including several of the other parties to the
litigation), but the series was not produced.
Several years later, Robinson resurrected Robinson
Curiosité and began pitching it to other producers, at
least one of which was interested in proceeding with the project.
However, Robinson Curiosité was never produced
because, in the meantime, the first episode of Robinson
Sucroë – a series produced by one of the
producers to whom Robinson had pitched Robinson
Curiosité – was broadcast. Having viewed the
episode, Robinson believed that there was too much resemblance
between the new show and his own project to go forth with
production of Robinson Curiosité.
The trial judge found that the defendants had indeed infringed
Robinson's copyright in Robinson
Curiosité and awarded substantial damages against
the defendant producers. On appeal to the Quebec Court of Appeal,
the finding of copyright infringement was upheld but the
award of damages to Robinson was reduced substantially. It will now
fall to the Supreme Court of Canada, which is set to hear these
appeals in February 2013, to determine whether the lower courts
were correct in their treatment of several fundamental issues of
copyright law.
The Issues on Appeal
Robinson's appeal focuses largely on the Court of
Appeal's reduction of the damages award, which Robinson
maintains was improper. He argues that not only that reducing
damages in the circumstances of the case sends the message that
copyright infringement is profitable, but also that the practical
outcome of the decision is to restrict the availability of
copyright protection.
The other three appeals concern the lower courts'
determination that a substantial part of Robinson
Curiosité was reproduced in the making of Robinson
Sucroë. The appellants ask the Court to articulate and
clarify the proper analytical methodology for determining when a
substantial part of a work has been reproduced. Among other
things, this may require the Court to consider how similarities
common to a genre of dramatic works – not to mention
similarities possibly derived from a common public domain source
(after all, Daniel Defoe first published Robinson Crusoe
in 1719) – factor into the analysis. Presumably, it will
also look at the extent to which differences between the works at
issue, as opposed to the similarities, should be considered
relevant.
Other fundamental copyright questions at issue – and
there are many – include:
- How courts should determine whether a work is "finished", whether unfinished works are excluded from copyright protection, and whether multiple versions of a single work can be subject to copyright protection;
- The proper line between a mere idea, which does not qualify for copyright protection, and the expression of an idea, which does;
- The role of expert testimony in copyright infringement cases, particularly where the similarities at issue may not be readily perceived by the average observer; and
- Whether corporate directors are subject to personal liability under the Copyright Act;
Naturally, all of this will play out against the background of
the usual balance in copyright law between the need to afford
adequate protection to creators and rightholders, on the one hand,
and the interests of users in access to creative works, on the
other. The appellant producers, in particular, argue that if a
finding of infringement is based only on an assessment of
similarities, and does not consider differences, artists may not be
able to build on, or seek inspiration from, works found in the
public domain for fear of infringing copyright laws. As such, they
argue, creativity may be stifled in Canada, forcing artists to
travel to jurisdictions with less stringent copyright laws where
they can safely create new works.
With decisions coming this week in the December 2011
copyright appeals, and with Bill C-11, the Copyright Modernization
Act, likely to become law within the next few months, Canadian
copyright law has rarely been more dynamic. The addition of the
Robinson cases to the Supreme Court's docket
creates even more intrigue: the answers to the fundamental
questions they ask will undoubtedly shape the law for many years to
come.
The assistance of Stephanie Voudouris, student-at-law, in preparing this article is gratefully acknowledged.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
