Canada: Copyright Castaway: Robinson Crusoe Washes Up Onto The Supreme Court Docket

Last Updated: July 16 2012
Article by Casey Chisick

After hearing a landmark series of five copyright cases in December 2011, the Supreme Court of Canada has recently granted leave to appeal in another four. At issue: whether an animated television series based on the well-known novel, Robinson Crusoe, infringed copyright in another proposed series based on the same underlying work and developed by some of the parties to whom the first series had been pitched. These cases will require the Court to consider, and perhaps to clarify, the legal question of when a "substantial part" of a work has been reproduced, infringing copyright. The Court will also look at the principles that animate the assessment of damages in copyright infringement cases.

The history of all four cases – Robinson v. France Animation, Izard v. Robinson, Weinberg v. Les Productions Nilem and Cinar Corporation v. Robinson – began when Claude Robinson, a Montreal artist, created a series of sketches and character creations for a projected children's television series called Robinson Curiosité. Robinson then proceeded to develop the proposed series further over a number of years, pitching it to a series of different television production companies (including several of the other parties to the litigation), but the series was not produced.

Several years later, Robinson resurrected Robinson Curiosité and began pitching it to other producers, at least one of which was interested in proceeding with the project. However, Robinson Curiosité was never produced because, in the meantime, the first episode of Robinson Sucroë – a series produced by one of the producers to whom Robinson had pitched Robinson Curiosité – was broadcast. Having viewed the episode, Robinson believed that there was too much resemblance between the new show and his own project to go forth with production of Robinson Curiosité.

The trial judge found that the defendants had indeed infringed Robinson's copyright in Robinson Curiosité and awarded substantial damages against the defendant producers. On appeal to the Quebec Court of Appeal, the finding of copyright infringement  was upheld but the award of damages to Robinson was reduced substantially. It will now fall to the Supreme Court of Canada, which is set to hear these appeals in February 2013, to determine whether the lower courts were correct in their treatment of several fundamental issues of copyright law.

The Issues on Appeal

Robinson's appeal focuses largely on the Court of Appeal's reduction of the damages award, which Robinson maintains was improper. He argues that not only that reducing damages in the circumstances of the case sends the message that copyright infringement is profitable, but also that the practical outcome of the decision is to restrict the availability of copyright protection.

The other three appeals concern the lower courts' determination that a substantial part of Robinson Curiosité was reproduced in the making of Robinson Sucroë. The appellants ask the Court to articulate and clarify the proper analytical methodology for determining when a substantial part of a work has been reproduced.  Among other things, this may require the Court to consider how similarities common to a genre of dramatic works – not to mention similarities possibly derived from a common public domain source (after all, Daniel Defoe first published Robinson Crusoe in 1719) – factor into the analysis. Presumably, it will also look at the extent to which differences between the works at issue, as opposed to the similarities, should be considered relevant.

Other fundamental copyright questions at issue – and there are many – include:

  • How courts should determine whether a work is "finished", whether unfinished works are excluded from copyright protection, and whether multiple versions of a single work can be subject to copyright protection;
  • The proper line between a mere idea, which does not qualify for copyright protection, and the expression of an idea, which does;
  • The role of expert testimony in copyright infringement cases, particularly where the similarities at issue may not be readily perceived by the average observer; and  
  • Whether corporate directors are subject to personal liability under the Copyright Act;

Naturally, all of this will play out against the background of the usual balance in copyright law between the need to afford adequate protection to creators and rightholders, on the one hand, and the interests of users in access to creative works, on the other. The appellant producers, in particular, argue that if a finding of infringement is based only on an assessment of similarities, and does not consider differences, artists may not be able to build on, or seek inspiration from, works found in the public domain for fear of infringing copyright laws. As such, they argue, creativity may be stifled in Canada, forcing artists to travel to jurisdictions with less stringent copyright laws where they can safely create new works.

With decisions coming this week in the December 2011 copyright appeals, and with Bill C-11, the Copyright Modernization Act, likely to become law within the next few months, Canadian copyright law has rarely been more dynamic. The addition of the Robinson cases to the Supreme Court's docket creates even more intrigue: the answers to the fundamental questions they ask will undoubtedly shape the law for many years to come.

The assistance of Stephanie Voudouris, student-at-law, in preparing this article is gratefully acknowledged.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Casey Chisick
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