'Does That TV Program Or Film Copy That Book?' The Limits Of ‘Colourable Imitation' In Canada

A recent summary judgment of the Federal Court of Canada highlights the fundamental principle that copyright protection does not extend to ideas or facts. The decision illustrates the limits of the concept of colourable imitation at Canadian copyright law. It is also a reminder that 'access' to a work is a necessary element of infringement, and that independent creation is a full defence to copyright infringement.

In Evans v. Discovery Communications LLC,1 the defendant broadcaster Discovery Communications LLC was granted summary judgment dismissing a copyright infringement claim by self-represented plaintiff Dean Evans. The plaintiff alleged that episodes from a television show broadcast by the defendant infringed copyright in Evans' novel, Glimpses of a Black Ops. Evans' novel explored how certain modern and near future technologies impact the lives of individuals as well as society in general; similarly, the TV show, Futurescape, examined the scientific bases and ethical implications of new and emerging technologies. Evans alleged that the TV show infringed copyright in his novel by exploring the same topics and themes, albeit without copying any specific portions or passages from the novel.

Even's claim was essentially one of infringement by 'colourable imitation', involving 'non-literal copying'. In a similar claim regarding fictional animation, the Supreme Court of Canada has previously said creators are protected from "both literal and non-literal copying, so long as the copied material forms a substantial part of the infringed work ... [T]he "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."2

The Court in Evans considered the plaintiff's allegations of non-literal infringement and found that his claims were outside the scope of copyright protection. Although Evans identified six episodes of the TV show he alleged infringed copyright in his novel, he did not claim that any specific portions of the episodes reproduced or were substantially similar to any expressions in his novel. Instead, the plaintiff claimed that the TV show episodes were "semantically similar" to his novel in terms of their "bonded expression", and supplied percentage...