A copyright decision from the Supreme Court of Canada and further proposed legislative changes are highlighted in this review of Canadian copyright law in 2013.

Cinar Corporation v. Robinson, 2013 SCC 73

In December 2013, the Supreme Court of Canada released its decision in Cinar Corporation v. Robinson, another decision from the Court of significant import for Canadian copyright law.

The artist and plaintiff, Claude Robinson, sued Cinar Corporation with respect to a children’s television show released by it named Robinson Sucroë.  The show bore significant similarities to a children’s television show that Mr. Robinson had conceived called “The Adventures of Robinson Curiosity.”

Cinar Corporation was among those to whom Mr. Robinson had unsuccessfully pitched his ideas and disclosed his characters, storyboards, scripts, synopses and promotional materials in the mid to late 1980s while attempting to attract interest in his ideas. The first episode of Cinar Corporation’s show, Robinson Sucroë, aired in 1995, stunning Mr. Robinson and eventually giving rise to the litigation.

Cinar Corporation argued that its show did not incorporate a substantial part of the portions of Mr. Robinson’s work it considered capable of attracting copyright protection. It argued for an “abstraction-filtration-comparison” approach to infringement similar to that used by U.S. courts to assess the issue of substantial copying in the context of computer software infringement claims.

While not excluding the possibility that such an approach could be useful in some circumstances, the Supreme Court of Canada ruled that Canadian courts should generally continue to adopt a “qualitative and holistic” approach to assessing substantiality. Using this approach, the trial judge’s findings of infringement were affirmed by the Supreme Court.

The Supreme Court also upheld the trial judge’s decision to give weight to evidence tendered at trial by a semiologist (one who studies symbols and how they convey meaning). The expert’s evidence was that latent similarities existed between the two works which helped establish a greater degree of similarity than might at first be apparent. The trial judge faced  the difficult task of comparing a sprawling unrealized submission for a television show to a finished product that had aired on television. These were not works easily compared side-by-side. The expert evidence was held to be useful and thus necessary.

Bill C-8: Combating Counterfeit Products Act

When Parliament reconvened after prorogation, it reintroduced the Combating Counterfeit Products Act as Bill C-8[1] and the perception has been that its progress is being fast-tracked.

With respect to copyright, the Bill would increase criminalization of copyright infringement, as well as provide new and greater powers for Canadian border officials to detain suspected infringing and counterfeit goods, and to share information relating to these goods with particular rights holders. 

Third reading of the Bill is expected shortly.

Manitoba v. Canadian Copyright Licensing Agency, 2013 FCA 91

In this decision, the Federal Court of Appeal confirmed that the Crown is bound by the Copyright Act and is not immune to copyright tariffs set in accordance with the Act. In reaching these conclusions, the Court of Appeal considered the structure of the Act, its legislative history and its evolution.

Notice-and-Notice System for ISPs

The Copyright Modernization Act,[2] which implemented a wave of changes to Canadian copyright law in 2012, also proposed to reduce ISP exposure to liability for copyright infringement committed by their customers via a “notice-and-notice” regime. The proposed regime was not proclaimed into force in 2012 with the rest of the modernization amendments, but was held back pending drafting of accompanying regulations after a consultation process with stakeholders.

It is anticipated that the regime and regulations will likely be proclaimed into force in 2014.