This Supreme Court copyright decision decides issues of 1)
whether a substantial part of a work is reproduced; 2) the role of
expert evidence in copyright infringement cases; and 3) to assess
whether the trial judge committed reviewable errors in his award of
damages, including disgorgement of profits, non-pecuniary damages,
and punitive damages.
In short, Robinson had sketched out a story and characters for a
children's show called Robinson Curiosité. He shopped
the idea to various people and companies but the show was never
made. Years later the Cinar Corporation, one of the companies who
had previously seen the concept, broadcast a children's show
called Robinson Sucroë, and this was found to be an infringing
The Supreme Court describes the two works as similar, stating that
"[l]ike Curiosity, Sucroë features a bearded,
Robinson Crusoe-inspired protagonist who wears glasses and a straw
hat. In both works, the protagonist lives on an island and
interacts with other characters. There are however notable
differences between the works. Many of the "side-kicks"
in Curiosity are animals, whereas in Sucroë they are
predominantly humans. Also, Sucroë, unlike Curiosity, features
a band of marauding pirates as
The Supreme Court agreed with the trial judge's approach for
determining there was an infringement of a substantial portion of
the work. The use of the expert testimony was considered to be
reasonable in the circumstance. Personal liability on the part of
some of the defendants but not others was upheld.
The Supreme Court overturned the Court of Appeal and ordered a
disgorgement of the profits from the soundtrack that accompanied
the TV show. There was no finding that the soundtrack could have
been commercialized as a separate product if Curiosity had not been
infringed in the first place. The soundtrack was only
commercialized as a component of the television show Sucroë,
which was itself created by copying a substantial part of
The decision to apply the Andrews cap to non-pecuniary
damages was also overturned. The Andrews cap covers
non-pecuniary losses that can be recovered following catastrophic
bodily injury. In this case, the shock and depression arose from a
material injury and not a breach of the body's physical
integrity. The Supreme Court viewed the situation to be similar to
defamation, and restored the trial judge's $400,000 award for
The award of punitive damages was originally set at $1,000,000,
reduced to $250,000 on appeal, and now increased to $500,000 by the
Supreme Court. This amount was then apportioned between the
parties, as it was found that punitive damages could not be awarded
on a solidary, or joint and several, basis.
Domenic Pub had sought to set aside a default judgment for
copyright infringement but the motion was dismissed by the first
Federal Court Judge who heard the motion. Domenic Pub appealed, but
this was also dismissed because it was found that there were no
errors requiring intervention.
The original default judgment enjoined the pub from broadcasting
UFC events and ordered the pub to pay $20,000 in damages and $1,500
in costs. The Judge who heard the motion to set aside the default
judgment decided that the owner of the pub had been properly served
with the Statement of Claim and there was no reasonable explanation
for failing to file a defence. She also found that the pub did not
provide any evidence of a defence to the copyright claim, nor did
the pub provide an explanation for the delay. The Court of Appeal
dismissed the appeal because this was the correct legal test and no
error was found.
Parliament has published amendments to the Patent Rules regarding becoming a patent agent
and the Trade-mark Regulations regarding becoming a
trade-mark agent. The Regulatory Impact Analysis Statement for both
can be found with the publication for the Patent Rules.
Amendments to the Patent Rules regarding Final Action procedures
and Re-examination proceedings were published in Part II of the Canada Gazette on
December 18, 2013. The Rules will come into force on January 17,
In conjunction with these amendments, CIPO will publish a revised
chapter 21 of the Manual of Patent Office Practice
(MOPOP), entitled Final Actions and Post-Rejection
Practice, which will also come into force on January 17,
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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