In the midst of the culturally effervescent sixties, the Quebec Ministry of Education was trying to develop new means to reach underprivileged children through television. Laurent Lachance, then a CEGEP teacher, was hired by the Ministry. His employment contract was renewed every year until he received a permanent full-time position in 1977. During his employment, he was given the mandate to create an original educational children’s series, which became a huge success. Between 1977 and 1998, 283 episodes of the now famous Passe-Partout series were produced and shown on television.
In 2006, at a time where the original public of the series were becoming parents themselves, two production companies obtained the rights from the public broadcaster to put DVD box sets of the first 125 episodes on the market. Although he was invited to the series launch, Lachance was never consulted beforehand nor was he asked to assign his rights in the series.
The re-release was a success, with almost 200,000 copies sold. Lachance decided then to claim royalties amounting to 15% of the proceeds of the DVD box sets. Since his claim was rejected, he instituted proceedings before the Quebec Superior Court.
Lachance claimed that he was the person in charge of the creative process and was given carte blanche by the Ministry. He claimed that there was no relationship of subordination between him and his employer, and that therefore he should be granted copyright ownership because he was the father of the artistic work. The production companies responded that he was simply a project manager hired by the Ministry.
On March 15, 2012, the Quebec Superior Court dismissed his action, but Lachance appealed the decision. In a judgment from January 30, 2014, the Quebec Court of Appeal dismissed his appeal, and confirmed the criteria applicable to section 13(3) of the Copyright Act.
Section 13(3) of the Copyright Act states that:
“13(3). Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright […]” (Emphasis added)
The Court of Appeal ruled in favour of the production companies, holding that Lachance could not claim more than the moral rights in the series. The court said that although Lachance was one of the authors within the meaning of the Copyright Act, he was never the copyright owner. Even though he was in charge of the creation process, Lachance was not a self-employed worker but rather a party to an employment contract with the Ministry.
Canada's Copyright Act Draws Clear Line in Employment Context
No matter how much creativity has been demonstrated by an employee, the employer will always own the product copyright if one of the following applies:
- a work is created during an employment contract;
- a work is created in the course of employment; and
- there is no written agreement to the contrary between the parties.
Unfortunately for Lachance, that means that although his “paternity rights” were recognized by the Court of Appeal, he will not be able to claim any royalties from the sale of the series.