When it comes to Canadian IP battles, neither The Great Olympic Sweater Debate nor the Distinctly Canadian Patent Fight can rival the court battle over the design of the Bluenose for sheer Canadianess.
In Nova Scotia v. Roué, 2013 NSCA 94 (CanLII) the court addressed the copyright in the design of the famous schooner Bluenose. This is the ship that graces the back of the Canadian dime. Certain descendants of the vessel’s original designer, William J. Roué, launched an action against the Province of Nova Scotia, claiming that the Province was infringing copyright and moral rights in the original design drawings of their ancestor, by restoring or rebuilding the Bluenose vessel.
A little history is in order: The original Bluenose was launched in 1921. A legendary racing schooner, the ship was undefeated for 17 years straight. The original Bluenose sank on a reef off Haiti in 1946. A replica Bluenose II was constructed in 1963, with access to Mr. Roué’s original designs. The Province took ownership in 1971 and now the Province describes its current efforts as a restoration of Bluenose II. Mr. Roué’s descendants allege that the Province is in fact creating an entirely new vessel and thus infringing copyright and moral rights in the original drawings. The Province responded by arguing, among other things, that the restoration of the Bluenose II is not a “substantial reproduction” of the original Bluenose, but rather an independent design, and if any of the original design was used “it was only dictated by the utilitarian function of the article”, and thus outside the purview of copyright.
As with many fascinating copyright battles, this one turned on relatively mundane court rules. Here, the application and the appeal centred on the question of whether the case could proceed as an application rather than by means of a full trial. Weighing all of the factors, the court suggested that the application could go ahead, without the need to convert it to a full trial.