This Week At The SCC (15/02/2013)

Cases Heard

The Supreme Court of Canada heard arguments this week in four interrelated cases of interest to Canadian businesses and professions, and reserved judgment in each.

The four copyright cases, which canvas a variety of issues under the Copyright Act, arise from the decision of the Québec Court of Appeal in France Animation v. Robinson, 2011 QCCA 1361. Robinson alleged that Cinar's cartoon Robinson Sucroë was a copy of his own work Robinson Curiosité. The trial judge found infringement and the Court of Appeal upheld the Superior Court's finding that an original work existed and was infringed by the defendants Cinar, Ronald A. Weinberg, Christophe Izard, France Animation, Ravensburger FILM + TV Gmbh and RTV Family Entertainment AG. However, the Court of Appeal quashed the trial judge's finding that Christian Davin (President and CEO of France Animation) bore personal liability and reduced the total award to the plaintiffs from $5,224,293 to $2,736,416.

The Supreme Court is expected to comment on the test to be applied to determine whether a material or substantial part of the work has been reproduced. Both the Superior Court and the Court of Appeal found that Robinson's work constituted an original work, even though the project was incomplete.

In addition, both courts below found that an infringing copy is assessed first by its similarities even if there are numerous differences in the rest of the copy. At the Supreme Court, the defendants argued that there are more differences than similarities between the two works and that any similarities may be explained by the fact that Curiosité and Sucroë belong to a common genre, namely children's programming, and both share the same roots: the novel "Robinson Crusoe" by Daniel Defoe. Also, on the issue of the appropriate test to measure the similarity between the characters, the defendants argued that the trial judge committed a palpable error in basing his analysis on the opinion of an expert instead of an "average observer".

The Court of Appeal accepted the defendants' arguments that amounts relating to musical rights should be deducted in calculating the defendants' profits. Before the Supreme Court, the plaintiffs argued that music specifically commissioned and written solely for the synchronization with the images and texts of a cinematographic work is inextricable from the infringing cinematographic work and that the revenues earned from the musical rights should be included in the...