The Supreme Court of Canada (“the Court”) issued its eagerly awaited decision in Cinar v Robinson on December 23, 2013. Robinson alleged various production companies, their directors and officers, and individual producers (“the Defendants”) infringed his copyright in an undeveloped children’s television series, Les Aventures de Robinson Curiosite, (“Curiosite”), by producing and broadcasting a similar children’s television show, Robinson Sucroe (“Sucroe”). The Court unanimously upheld the lower Quebec Superior Court’s findings that Sucroe infringed Curiosity, but maintained in part the decision of the Quebec Court of Appeal that reduced the damages granted by the lower Court, to roughly $4 million in remedies and costs instead of the original $5.2 million.

The decision touched on three main topics: infringement, liability, and remedies.

Infringement

The Court upheld the trial judge’s finding that Sucroe copied the Plaintiff’s overall architecture for a children’s television show; the graphic appearance of the main protagonist; the personality traits of the main protagonist and several other characters; and the graphic appearance of some of the settings, all of which existed independent of the public domain novel, Robinson Crusoe. It deferred to the lower Court’s findings, since what amounts to “substantial” is an issue of mixed fact and law. The trial judge had relied on evidence of how the two works used similar atmosphere, dynamics, motifs, symbols and structure to convey meaning. 

Before assessing whether Sucroe copied a “substantial part” of Curiosite, the Court emphasized the central principle of balance under the Copyright Act (“the Act”) – the balance between ideas/public domain and protected original expression. Although general stock incidents in fiction or drama are in the public domain, the Court held original expression of such public domain elements worthy of copyright protection. The decision affirms that copyright can protect fictional characters – both their appearance and personality traits.

The Court recognized that what is “a substantial part” varies between cases: it is “a flexible notion” that is “determined in relation to the originality of the work”. The Act protects against both literal and non-literal copying, for example, as noted by the Court, “the 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”. Any colourable imitation is a copy. 

The Court endorsed a qualitative and holistic approach. The cumulative effect of the features copied from the work must be considered to determine whether those features amount to a substantial part of the skill and judgment expressed in the work as a whole. The Court’s focus on the “effect” of the copying is significant, particularly since it noted that both patent and latent, and perceptible and intelligible similarities are relevant in assessing substantial similarity. “Perceptible” similarities are those that can be directly observed. “Intelligible” similarities, such as atmosphere, dynamics, motifs, and structure, affect a viewer’s experience of the work indirectly. The Court emphasised that the quality rather than quantity, of the taking was most important.

The Court did not reject applying an “abstraction-filtration-comparison” test to other works (e.g. computer programs). 

Furthermore, the focus should be whether a substantial amount of the plaintiff's work was copied, not if the plaintiff's work amounts to a substantial part of the Defendant's work. Altering features or integrating features into a notably different work may not avoid infringement. However, the Court confirmed that, in some cases, substantial differences between works could make the copying non-infringing i.e. “if the differences are so great that the work, viewed as a whole, is not an imitation but rather a new and original work, then there is no infringement”.

The Court clarified the relevant perspective in assessing infringement is that of the “person whose senses and knowledge allow him or her to fully assess and appreciate all relevant aspects – patent and latent – of the works at issue”. It also endorsed the use of experts, recognizing that laypeople may not detect similarities between the works otherwise apparent to one “reasonably versed in the relevant art or technology.” In this case, relying on a “layperson” standard rather than an expert would have shifted the question to whether the copied features were apparent to a five-year-old.

Liability

The Court found that corporate directors and officers would not be personally liable unless they engaged in “deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement or reflected an indifference to the risk of it”. Directors who had no knowledge of Robinson’s work were not held liable, and circumstantial evidence was not enough to support a “serious, precise and concordant” presumption of personal liability. 

Remedies

The Court held it appropriate to disgorge the profits of the parties who had actually made money and confirmed the Court of Appeal’s finding that liability be imposed on the Defendants “severally,” not “jointly and severally.” 

The damages decision turned mostly on the Court’s interpretation of specific provisions in the Quebec Civil Code and Charter. The Court rejected that non-pecuniary damages caused by psychological suffering should be capped by the amount established in the Andrews caselaw trilogy, limiting those cases to instances of physical bodily harm. Since the harm suffered by Robinson was akin to defamation, he was awarded non-pecuniary damages similar to Quebec defamation cases. Punitive damages were raised to $500,000.

Concluding Remarks

With Robinson, the Court continues to interpret the Act in a liberal manner – this time for creators. The decision supports a broad threshold for “originality,” discusses the balance between public domain ideas and protectable expression, and confirms that sufficiently defined fictional characters are subject to copyright. The analysis focused less on whether a particular work should get a “thin” or “thick” scope of protection depending on its level of originality, and more on assessing the cumulative “effect” of the copied elements on the audience. Of course, access to a work and copying (including by colourable imitation) must still be proven. The decision also provides a higher standard for assessing whether a substantial part was copied which may lead to greater use of experts in copyright cases. Given the Court’s broad level of protection and the significant damages award, many are pondering the chilling effect this decision may have on the entertainment industry.