Cinar Corporation v Claude Robinson, 2013 SCC 73
On December 23, the Supreme Court of Canada released another decision with significant import for Canadian copyright law.
The artist and plaintiff Claude Robinson (and his company) sued Cinar Corporation and others arising from a children's television show released by them named Robinson Sucroë which bore significant similarities to a children's television show that had been conceived and developed over the course of years by Mr. Robinson. He called his children's show The Adventures of Robinson Curiosity.
Over the course of several years, Mr. Robinson had tried to get his show produced but his efforts to attract funding and partnership were not successful. Cinar Corporation was among those to whom he had pitched his ideas and disclosed his characters, storyboards, scripts, synopses and promotions materials in the mid to late 1980s.
The first episode of Cinar Corporation's show Robinson Sucroë aired in 1995, stunning Mr. Robinson and eventually giving rise to the litigation.
At trial, the defendants were found to have infringed Mr. Robinson's work and Mr. Robinson was awarded more than $5 million in damages and costs. The Quebec Court of Appeal upheld most of the trial judge's findings of infringement while reducing some of the monetary relief awarded at trial.
The Supreme Court of Canada affirmed the trial judge's findings of infringement and allowed a considerable increase in the monetary relief awarded to Mr. Robinson by the Quebec Court of Appeal.
The Supreme Court of Canada's unanimous decision was written by Chief Justice McLachlin.
On the question of infringement, the appellant Cinar Corporation argued that the trial judge had erred by using a "holistic approach" to determining whether or not its children's program reproduced a "substantial part" from Mr. Robinson's work (copyright law only protects against the unauthorized reproduction of a "substantial part" of another's work). Cinar Corporation argued that the trial judge should have applied a three-step approach, requiring him to:
- determine what elements of Mr. Robinson's work were original, within the meaning of the Copyright Act;
- exclude non-protectable features of Mr. Robinson's work (such as ideas, elements drawn from the public domain, and generic elements commonplace in children's television shows); and
- compare what remains after this "weeding-out" process to Cinar's program Sucroë,
and only then determine whether a substantial part of Mr. Robinson's work was reproduced.
This approach is similar to the "abstraction-filtration-comparison" approach used in the United States to assess substantial copying in the context of computer software infringement, which approach has also been discussed in Canadian copyright disputes.
While not excluding the possibility that an "abstraction-filtration" approach could be useful in some circumstances (such as computer software disputes), the Chief Justice stated that such approach will not be appropriate in many cases. She concluded that our courts should generally continue to adopt a "qualitative and holistic" approach to assessing substantiality:
 ... The approach proposed by the Cinar appellants would risk dissecting Robinson's work into its component parts. The "abstraction" of Robinson's work to the essence of what makes it original and the exclusion of non-protectable elements at the outset of the analysis would prevent a truly holistic assessment. This approach focuses unduly on whether each of the parts of Robinson's work is individually original and protected by copyright law. Rather, the cumulative effect of the features copied from the work must be considered, to determine whether those features amount to a substantial part of Robinson's skill and judgment expressed in his work as a whole.
Cinar Corporation also argued that the trial judge had erred by basing the bulk of his findings regarding infringement from evidence tendered by a semiologist (the study of signs and symbols and how they convey meaning). This expert offered evidence at trial that there were latent similarities in how the two works at issue used atmosphere, dynamics, motifs, symbols, and structure to convey meaning, which helped establish a greater degree of copying than might at first have been apparent.
For expert evidence to be admitted at trial, it must: (a) be relevant; (b) be necessary to assist the trier of fact; (c) not offend any exclusionary rule; and (d) involve a properly qualified expert. Cinar Corporation argued that such evidence was not necessary in this case because the similarity between two television shows could be assessed by a lay person and thus a trial judge without expert assistance.
In the Chief Justice's view, while the perspective of a lay person in the intended audience for the works at issue is a useful one, the question always remains whether a substantial part of the plaintiff's work was copied. Further, this question should be answered from the perspective of " ... a person whose senses and knowledge allow him or her to fully assess and appreciate all relevant aspects ¯ patent and latent ¯ of the works at issue."
The trial judge was found to have been faced with the difficult task of comparing a sprawling unrealized submission for a television show to a finished product that had aired on television. These were found by the Chief Justice not to be works that could easily be compared side-by-side without the assistance of an expert. The works at issue were also confirmed to have had both patent and latent similarities for which the expert evidence was useful and thus necessary.
In the end, findings of infringement and substantial taking were affirmed. Significant monetary relief was awarded, including both pecuniary and non-pecuniary damages, profits, punitive damages and solicitors costs.
Gowling Lafleur Henderson LLP served as counsel for Mr. Robinson and his company. The team members were Gilles Daigle and Guy Régimbald (Ottawa office) and Florence Lucas, Francine Martel and Laurence Bourgeois-Hatto (Montreal office).
A copy of the Supreme Court of Canada's decision can be
found at the following link:
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