In an epic saga dating back over 40 years and 6 years of litigation, the Quebec Court of Appeal has released a decision which states clearly that an employer is the presumed owner of the copyright to works created by an employee, provided no contractual provision says otherwise.
In 1968, Laurent Lachance was hired by the Ministry of Education of Quebec as an occasional employee. In 1972, the Director of Audio-Visual Productions asked Lachance to create a French-language educational television series for children which would include 125 educational episodes. This ultimately resulted in the popular television series “Passe-Partout”. Lachance’s employment contract was renewed annually until he became a permanent employee in 1977. He continued his employment with the Ministry until his retirement in 1993. Between 1977 and 1998, more than 283 episodes of Passe-Partout shows were produced.
The employment contract was silent as to ownership of intellectual property.
Long after the series stopped airing, Productions Marie Eykel Inc. obtained a commercial license in order to sell DVDs of the first 125 episodes. DVD sales were extremely successful. In June of 2007, Lachance attempted to assert a copyright claim over the episodes, seeking 15% royalties on all DVD sales. Productions Marie Eykel Inc. initially took the position that Lachance was not an “author” for the purposes of the Copyright Act and that even if he were, the copyright belonged to his employer.
In 2012, the Superior Court of Québec found that the Passe-Partout series constituted a copyright work as defined in the Copyright Act (the “Act”), and that Lachance was one of the authors, in co-operation with others. However, since the evidence established that the series has been created in the course of the Lachance’s employment, the Court decided that the rights vested with the employer pursuant to ss. 13(3) of the Act. Consequently, the Court dismissed Lachance’s action without costs, stating that he was not the owner of the copyright work and that he was not entitled to royalties.
Lachance appealed the trial judge’s findings, challenging her interpretation and application of ss. 13(3) of the Act.
The Quebec Court of Appeal concluded on January 30, 2014 that Lachance could not assert copyright over the show, and therefore was not entitled to royalties as a result of DVD sales. Lachance clearly had moral rights (“droits moraux”) to be associated with his own work, but these had not been breached. The DVDs clearly made reference to his contributions.
The Court of Appeal concluded that the trial judge had correctly interpreted and applied ss. 13(3) of the Act in light of the evidence. The Court confirmed that the employer is the owner of the copyright with respect to the work of his or her employee when the following conditions are met:
- the work is created in the course of an employment contract;
- the work is created by the employee in the exercise of such employment; and
- there is not a contractual provision that says otherwise.
The Court of Appeal’s decision represents the culmination of a costly six-year legal battle. Notable is that the successful party was not awarded costs, despite its victories at the Superior Court and Court of Appeal.
It should be noted that the decision could have gone in favour of Mr. Lachance, had he been an independent contractor. The key here was that Mr. Lachance was an employee. Businesses may be able to avoid significant legal battles over copyright by ensuring that (1) there is no doubt that the person was an employee, and (2) that there are clear provisions regarding ownership of intellectual property in their contracts and employment agreements.