Cinar Corporation V Robinson, 2013 SCC 73

On December 23, 2013, a unanimous Supreme Court of Canada issued its decision in the copyright infringement action involving the children's cartoon television show "The Adventures of Robinson Curiosity" ("Curiosity") and the impugned copy "Robinson Sucroë" ("Sucroë"). The appeal required the Court to assess a key area of copyright law: whether a substantial part of a work had been reproduced. This was a significant issue since there had been no literal copying and it is a well establsihed principle of copyright law that there is no copyright protection for ideas. Rather, it is the original expression in a work that is protected. The decision also addressed the role of expert evidence in infringement actions, the vicarious liability of officers and directors, and the assessment of damages.

The Court's consideration of whether a substantial part of the work had been reproduced is of considerable interest since the Court made it clear that there could be infringement even if the defendant did not engage in any literal copying. On the issue of a substantial part, the Court noted it is a "flexible notion" that is a "matter of fact and degree", concluding that "[a]s a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author's skill and judgment expressed therein". The Court reiterated that a part is substantial based on its quality rather than its quantity. Perhaps most importantly, the Court acknowledged that the "Act protects authors against both literal and non-literal copying, so long as the copied material forms a substantial part of the infringed work" and cited the House of Lords in Designers Guild Ltd. v. Russell Williams (Textiles) Ltd., [2001] 1 All E.R. 700 (H.L.) at 706, for the proposition that "... the "part" which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. ... [T]he original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original".

In applying this methodology, the Court reiterated that a substantiality analysis cannot be conducted by dealing with the copied features piecemeal, but rather the cumulative effect of the features copied from the work must be considered, to determine whether those features amount to a substantial...