Lavigne (Valmedia) v. 9061-6632 Québec Inc.: Infringement Of Moral Rights Will Not Go Unpunished

Published date09 February 2022
Subject MatterIntellectual Property, Copyright
Law FirmFasken
AuthorMs Isabelle Kalar

True to its continental European heritage, Canada has a strong regime for the protection of moral rights. This includes the inalienable right of creators to be associated with their work as its author and to protect its integrity, notwithstanding any assignment of economic rights. These rights have been recognized in Canada under the Copyright Act (the "Act") since 1931 and have been repeatedly recognized in past decisions of the Supreme Court of Canada1.

In Lavigne (Valmedia) v. 9061-6632 Québec inc., 2021 QCCQ 13322, Judge Choquette of the small claims division of the Court of Québec reminded users of content of the sanctions that may be imposed for infringement of moral rights. In that decision, the Court offered an interpretation of the parameters that govern the modification of photographs published in a newspaper.

In that case, the plaintiff, Emmanuel Lavigne, who was a professional photographer, contested the use of three of his photographs made by the defendant Journal Accès. Emmanuel Lavigne alleged that Journal Accès had infringed his copyright and his moral rights.

The Court held first, unsurprisingly, that the photographs were works protected by copyright within the meaning of the Act and that authorization was required for reproducing them. However, there was a licence between the parties that allowed Journal Accès to disseminate the photographs, but required that any reproduction be accompanied by the plaintiff Lavigne's logo. There was therefore no copyright infringement since Journal Accès had permission to publish the photographs. However, the Court seems to have ignored the fact that removing the plaintiff's logo put Journal Accès in breach of contract. The right of attribution, also called the right to be associated with the work as its author, is a recognized moral right that allows an author to be identified and to be associated with their work. In this case, that right was the subject of a specific obligation agreed to by the parties. It is therefore worth noting that the decision does not affect the contractual remedies that would otherwise result from the licence itself.

Accordingly, noting that the plaintiff Lavigne had not assigned any of his moral rights in his works, the Court found that the relevant question was whether the moral rights had been infringed. The plaintiff contended that his works had been altered by changes to the format and colour and by erasing the credit on the photographs. He alleged that this constituted an...

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