True to its continental European heritage, Canada has a strong regime for the protection of moral rights. This includes the inalienable right of creators to be associated with their work as its author and to protect its integrity, notwithstanding any assignment of economic rights. These rights have been recognized in Canada under the Copyright Act (the "Act") since 1931 and have been repeatedly recognized in past decisions of the Supreme Court of Canada1.

In Lavigne (Valmedia) v. 9061-6632 Québec inc., 2021 QCCQ 13322, Judge Choquette of the small claims division of the Court of Québec reminded users of content of the sanctions that may be imposed for infringement of moral rights. In that decision, the Court offered an interpretation of the parameters that govern the modification of photographs published in a newspaper.

In that case, the plaintiff, Emmanuel Lavigne, who was a professional photographer, contested the use of three of his photographs made by the defendant Journal Accès. Emmanuel Lavigne alleged that Journal Accès had infringed his copyright and his moral rights.

The Court held first, unsurprisingly, that the photographs were works protected by copyright within the meaning of the Act and that authorization was required for reproducing them. However, there was a licence between the parties that allowed Journal Accès to disseminate the photographs, but required that any reproduction be accompanied by the plaintiff Lavigne's logo. There was therefore no copyright infringement since Journal Accès had permission to publish the photographs. However, the Court seems to have ignored the fact that removing the plaintiff's logo put Journal Accès in breach of contract. The right of attribution, also called the right to be associated with the work as its author, is a recognized moral right that allows an author to be identified and to be associated with their work. In this case, that right was the subject of a specific obligation agreed to by the parties. It is therefore worth noting that the decision does not affect the contractual remedies that would otherwise result from the licence itself.

Accordingly, noting that the plaintiff Lavigne had not assigned any of his moral rights in his works, the Court found that the relevant question was whether the moral rights had been infringed. The plaintiff contended that his works had been altered by changes to the format and colour and by erasing the credit on the photographs. He alleged that this constituted an infringement of his moral rights.

The Court found that the cropping and very subtle change of colour carried out for publication purposes were not an infringement of the right to integrity. The plaintiff was unable to persuade the Court that those modifications, in isolation or cumulatively, were performed to the prejudice of his honour or reputation, as required by section 28.2 of the Act if an infringement of the right to the integrity of the work is to be found.

However, the erasure of the credit on the photographs was prejudicial to the plaintiff. Under section 14.1 of the Act, the author of a work has the right to be associated with it as its author. The logo on the plaintiff's photographs made him recognizable when his work was disseminated. By removing the credit, Journal Accès had deprived him of that recognition.

The Court therefore concluded that the plaintiff was entitled to damages to compensate for the infringement. He chose to seek the statutory damages provided for in section 38.1 of the Act. To facilitate its work, the Court referred to the non-exhaustive factors listed in section 38(5) of the Act for determining the appropriate amount. The factors considered by the Court included the parties' conduct before the proceedings and proportionality. Since the plaintiff had shown no openness before the proceedings, unlike the defendant, and, considering the non-commercial context of the use made by the defendant, the Court concluded that $400 was an appropriate amount.

However, the Court refused to order the defendant to publish an apology. It pointed out that it had no jurisdiction to order injunctive relief, that power being reserved to the Superior Court of Quebec.

Takeaways from this decision:

  • Minor modifications that do not cause prejudice, such as cropping or altering colour, do not constitute an infringement of the right to integrity;
  • The author of the work has the right to be associated with it as its author and the work should not be modified to erase that association without the author's consent;
  • Showing openness during negotiations could be profitable if the court has to rule on statutory damages;
  • Although damages appear to have been symbolic in this case, the Act provides that statutory damages can be as much as C$5,000 for an infringement for non-commercial purposes and C$20,000 for an infringement for commercial purposes.

This decision is useful as a reminder that Canadian copyright law includes a regime for the protection of moral rights that is surprisingly robust. If you have questions, Fasken has all the expertise needed to help you in this area.

Footnote

1      See, inter alia, Théberge v. Galerie d'art du Petit Champlain inc.,  2002 SCC 34 and Robinson v. Cinar,  2013 SCC 73

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