Copyright Law – Year in Review
While 2013 was not a seminal year for Canadian copyright cases when compared to 2012, there were certainly some memorable decisions which provide a worthwhile read by any standards. The following is a sampling of some of the most interesting cases of the year. A fuller description of the below decisions can be found in Barry Sookman’s paper which was recently presented at the Law Society of Upper Canada’s 18th Annual Intellectual Property Law: The Year in Review program. A link to the paper can be found on Sookman’s blog.
The most important copyright case of the year was the Supreme Court of Canada decision of Cinar Corporation v Robinson, 2013 SCC 73. The Supreme Court used the platform of a dispute between competing children’s cartoons to flesh out several important issues in copyright law. The Supreme Court agreed with the creator of the children’s television show “The Adventures of Robinson Curiosity” that another television show, “Robinson Sucroë”, had infringed his copyright through its use of similar characters and environment. Some of the major holdings included: (1) the Copyright Act only protects original expression in a work of art and not mere ideas, stock devices, or elements in the public domain; (2) infringement will likely only result if a substantial part of the quality of the work has been copied; (3) determining substantiality requires a “qualitative and holistic” approach; (4) the extent of the similarities are more important than the extent of the differences; (5) the similarities should be assessed from the perspective of the “intended audience for the works at issue”; and (6) damages can be assessed under principles analogous to those used in assessing damages for defamation.
While on the topic of television, the unreported decision of Twentieth Century Fox Film Corporation v Nicholas Hernandez et al., T-1618-13, is certainly worth a glance. Continuing a trend of imposing heavy sanctions against websites operators who upload and share without authorization (or who facilitate the uploading and unauthorized sharing of) copyright protected works, the court in this case reiterated its feelings about such activities in no uncertain way. Fox was awarded $10 million in statutory damages, $500,000 in punitive and exemplary damages, indemnity costs and an injunction against the defendants for their blatant infringement of Fox’s copyright by uploading unauthorised copies of two famous television shows to their aptly named websites “Watch The Simpsons Online” and “Watch Family Guy Online”.
Moving into a neighbouring industry, in Pinto v Bronfman Jewish Education Centre et al, 2013 FC 945, the plaintiff claimed that the defendants infringed his copyright over musical work produced for TaL AM, a Jewish language, religion, culture and history curriculum developed by the defendants. Siding with the defendants, the Court found an implied license in the freelance contract between the parties for the defendant to use the artistic work for the purpose it was created, thus no infringement was found.
In the realm of home design, Oakcraft Homes Inc. v Ecklund,  OJ No 3215 (OSCJ), reaffirmed that house plans can certainly be eligible for copyright protection. In this case, the defendant had the plaintiff design customised house plans, but then used another builder for the actual construction of the plans. The Court ruled that the house plans were worthy of copyright protection as they met the originality standard, and the copyright was not defeated by the plaintiff’s failure to mark the plans with ownership and copyright claims.
Even the governments of several provinces experienced a copyright law awakening in Manitoba v Access Copyright, 2013 FCA 91, which affirmed that the Crown is indeed bound by the Copyright Act (Canada), including the requirement to pay tariffs in respect of the reprographic reproduction of copyrighted work of the Canadian Copyright Licensing Agency. Several provinces objected to this finding by the Copyright Board of Canada, but their request for judicial review was dismissed by the Federal Court.
As mentioned earlier, the above are simply a sampling of some of the most interesting copyright cases decided this year. While 2013 may have only produced one Supreme Court decision in the field of copyright law, leave to appeal the National Gallery of Canada v Canadian Artists’ Representation / Le Front Des Artistes Canadiens Federal Court of Appeal decision was recently granted, thus in 2014 the Supreme Court is tasked with establishing the relationship between the Copyright Act and the Status of the Artists Act. This decision alone promises to make 2014 an important year for copyright law.
* Frances Candy is an Articling Student at McCarthy Tétrault.
Copyright Act copyright infringement