A copyright decision from the Supreme Court of Canada and
further proposed legislative changes are highlighted in this review
of Canadian copyright law in 2013.
Cinar Corporation v. Robinson, 2013 SCC 73
In December 2013, the Supreme Court of Canada released its
decision in Cinar Corporation v. Robinson, another decision from
the Court of significant import for Canadian copyright law.
The artist and plaintiff, Claude Robinson, sued Cinar
Corporation with respect to a children's television show
released by it named Robinson Sucroë. The show bore
significant similarities to a children's television show that
Mr. Robinson had conceived called "The Adventures of Robinson
Cinar Corporation was among those to whom Mr. Robinson had
unsuccessfully pitched his ideas and disclosed his characters,
storyboards, scripts, synopses and promotional materials in the mid
to late 1980s while attempting to attract interest in his ideas.
The first episode of Cinar Corporation's show, Robinson
Sucroë, aired in 1995, stunning Mr. Robinson and eventually
giving rise to the litigation.
Cinar Corporation argued that its show did not incorporate a
substantial part of the portions of Mr. Robinson's work it
considered capable of attracting copyright protection. It argued
for an "abstraction-filtration-comparison" approach to
infringement similar to that used by U.S. courts to assess the
issue of substantial copying in the context of computer software
While not excluding the possibility that such an approach could
be useful in some circumstances, the Supreme Court of Canada ruled
that Canadian courts should generally continue to adopt a
"qualitative and holistic" approach to assessing
substantiality. Using this approach, the trial judge's findings
of infringement were affirmed by the Supreme Court.
The Supreme Court also upheld the trial judge's decision to
give weight to evidence tendered at trial by a semiologist (one who
studies symbols and how they convey meaning). The expert's
evidence was that latent similarities existed between the two works
which helped establish a greater degree of similarity than might at
first be apparent. The trial judge faced the difficult task
of comparing a sprawling unrealized submission for a television
show to a finished product that had aired on television. These were
not works easily compared side-by-side. The expert evidence was
held to be useful and thus necessary.
Bill C-8: Combating Counterfeit Products Act
When Parliament reconvened after prorogation, it reintroduced
the Combating Counterfeit Products Act as Bill C-81 and
the perception has been that its progress is being
With respect to copyright, the Bill would increase
criminalization of copyright infringement, as well as provide new
and greater powers for Canadian border officials to detain
suspected infringing and counterfeit goods, and to share
information relating to these goods with particular rights
Third reading of the Bill is expected shortly.
Manitoba v. Canadian Copyright Licensing Agency, 2013 FCA
In this decision, the Federal Court of Appeal confirmed that the
Crown is bound by the Copyright Act and is not immune to copyright
tariffs set in accordance with the Act. In reaching these
conclusions, the Court of Appeal considered the structure of the
Act, its legislative history and its evolution.
Notice-and-Notice System for ISPs
The Copyright Modernization Act,2 which implemented a
wave of changes to Canadian copyright law in 2012, also proposed to
reduce ISP exposure to liability for copyright infringement
committed by their customers via a "notice-and-notice"
regime. The proposed regime was not proclaimed into force in 2012
with the rest of the modernization amendments, but was held back
pending drafting of accompanying regulations after a consultation
process with stakeholders.
It is anticipated that the regime and regulations will likely be
proclaimed into force in 2014.
1 Bill C-8, An Act to amend the Copyright Act and the
Trade-marks Act and to make consequential amendments to other Acts,
2nd Sess, 41st Parl, 2013.
2 Copyright Modernization Act, SC 2012, c.20.
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