This month an eagerly anticipated hearing will be held before the Supreme Court of Canada in the high-profile Claude Robinson case. On February 13, 2013, the Court will hear the parties' representations. We outline below the facts of this important case and the main questions at issue.
In 1982, Claude Robinson made the first drawings of characters for a children's television series which was to be called Robinson Curiosité (Curiosité) and defined the characters and their personalities in written form.
Robinson and his company Nilem then started additional steps for the production of their series. They contacted a number of companies, including Cinar. Despite considerable efforts, they had no success, even though the quality of their project was praised by several participants in the entertainment industry.
In September 1995, the first episode of Robinson Sucroë (Sucroë) was broadcast in Quebec. The series was produced by Cinar, France Animation and Ravensburger. In 1996, Claude Robinson and Nilem filed an action in infringement and in damages against the individuals and companies who had participated in the production of Sucroë.
In a Quebec Superior Court judgment on August 26, 2009, Justice Auclair granted the plaintiffs' action in part, finding that Curiosité was an original work that had been infringed and awarding total damages of $5,224,293 under the following heads:
- Claude Robinson's copyright: $607,489 (the amount was revised to $604,489 on appeal following correction of a clerical error)
- Share in the profits: $1,716,804
- Psychological harm suffered by Claude Robinson: $400,000
- Punitive damages: $1,000,000
- Solicitor-client fees: $1,500,000 plus taxes
The judgment was appealed by the defendants.
Judgment on appeal
In its ruling on July 20, 2011, the Quebec Court of Appeal upheld the Superior Court's finding that an original work existed and was infringed by the defendants Cinar, Ronald A. Weinberg (both personally and in his quality as liquidator of the succession of Micheline Charest), Christophe Izard, France Animation, Ravensburger FILM + TV Gmbh and RTV Family Entertainment AG.
However, the Court of Appeal quashed the trial judge's finding that Christian Davin (President and CEO of France Animation) bore personal liability and reduced the total award to the plaintiffs from $5,224,293 to $2,736,416.
Principal issues to be considered by the Supreme Court
All of the parties who sought leave to appeal the judgment of the Quebec Court of Appeal (and there were several) were granted leave to appeal on May 24, 2012.
On November 16, 2012, the Supreme Court also granted the application of Music Canada, a non-profit trade association which promotes the interests of the principal recording companies in Canada, to appear as an intervener. Music Canada cannot introduce new issues, but can only intervene on issues raised by the litigants that have already been approved by the Court. Music Canada believes that the issues before the Court are applicable to all creative industries and its intervention will focus on the appropriate test to determine whether a work or a substantial part of a work has been reproduced within the meaning of s 3(1) of the Copyright Act.
Here is an outline of the most interesting issues to be resolved by the Supreme Court:
What tests should be applied to determine whether a material or substantial part of the work has been reproduced?
Both the Superior Court and the Court of Appeal found that Robinson's work constituted an original work, even though the project was incomplete, mentioning that Robinson "has sufficiently drawn his characters, their personalities, their relations, and their environment."1
Both courts also found that Robinson's work had been infringed and explained that "an infringing copy is assessed first by its similarities, since, for instance, the use of a known important character from a comic strip may be enough, even if there are numerous differences in the rest of the copy."2 Judges in both courts based their findings on substantial similarities with respect to both the graphic aspect of the work and the personality traits of a number of the characters and their interactions, emphasizing that the definition of "infringement" in the Act includes "any colourable imitation".
In this final appeal, the defendants repeat their arguments that there are more differences than similarities between the two works and that the similarities may be explained by the fact that Curiosité and Sucroë belong to a common genre, namely children's programming, and both share the same roots: the novel "Robinson Crusoe" by Daniel Defoe.
On the issue of the appropriate test to measure the similarity between the characters, the appellants argue that the trial judge committed a palpable error in basing his analysis on the opinion of an expert. According to the appellants, Justice Auclair should have applied the "average observer" test, which is similar to the process used to examine confusing trade-marks, or the test of the "average consumer" with imperfect recall.
Does the music incorporated in a cinematographic work form an integral part of the work?
The Court of Appeal accepted the defendants' arguments that certain amounts should be deducted in calculating the defendants' profits. The award to Robinson and his company was therefore reduced from $1,716,804 to $260,577.
A large part of this reduction, or $1,117,252, related to the musical rights in Sucroë, as the defendants succeeded in arguing that the music had nothing in common with Claude Robinson's work.
The Court of Appeal acknowledged the principle that "the author is entitled to receive the part of the profits earned by the infringer which is causally linked to his work."3 but, citing Monsanto Canada inc. v. Schmeiser in a patent matter, found that "there is no causality here between the profits made by the [defendants] and the [plaintiffs'] musical work."4
Before the Supreme Court, the plaintiffs will argue that music [Translation]"ordered specifically and solely for synchronization with the images and texts of a cinematographic work"5 is indissociable from the infringing cinematographic work and that the revenues earned from the musical rights should be included in the calculation of profits.
Was it appropriate to find the defendants jointly and severally liable?
The Court of Appeal quashed the joint and several award of damages against the defendants, accepting their argument based on s. 35 of the Act, which the Court found limits the individual liability of an infringer to the profits "that the infringer has made from the infringement."6 This means that an infringer cannot be ordered to pay more than the profits he himself made (if a finding of joint and several liability would require the infringer to pay the plaintiffs more than his true share of the profits).
Robinson and Nilem are appealing this finding and argue that the Act recognizes that a plaintiff is entitled to a fair share of the profits earned jointly and severally by the infringers.
Was the quantum of damages awarded to Robinson for psychological harm appropriate?
Robinson is also appealing the Court of Appeal's reduction of the award for psychological harm from $400,000 to $121,350, which represents half of the ceiling established by the case law in matters of compensation for non-pecuniary damages.
Robinson argues that "no ceiling applies in circumstances where the harm is caused by a wilful act" or the defendants' gross negligence.
Other questions in appeal
The plaintiffs are also appealing:
- The Court of Appeal's reduction of the punitive damages awarded by the Superior Court (from $1,000,000 to $250,000).
- The reversal of the Superior Court's finding that Christian Davin, President and CEO of the co-producer France Animation, bore personal liability.
- The refusal on appeal to award the plaintiffs solicitor-client fees.
Meanwhile the defendants Weinberg and Charest's succession are attempting to have the following findings of the Court of Appeal quashed:
- That the dissolution of a corporation to which the plaintiffs had initially assigned their copyright in Curiosité led to the plaintiffs retroactively recovering their rights in the work even in the absence of a written assignment from the corporation to the plaintiffs;
- That there was conscious and deliberate participation in an act of plagiarism (giving rise to their personal liability).
The Robinson case has already been much commented on in Quebec and there is no doubt that the Supreme Court's judgment will have a lasting impact on copyright law in Canada.
1. France Animation, s.a. c. Robinson, 2011 QCCA 1361 at para. 54. Click here to read the appeal court judgment.
2. Ibid., at para. 61.
3. Ibid, at para 196.
4. Ibid., at para. 198.
5. See the factum of the appellants Claude Robinson and Les Productions Nilem Inc. (in French) by clicking here.
6. Section 35(1) LDA. Click here to see the full text of the Act.
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7. Supra note 4.