Canada: The Copyright Adventures Of Robinson Curiosite

The Supreme Court of Canada ("the Court") issued its eagerly awaited decision in Cinar v Robinson on December 23, 2013. Robinson alleged various production companies, their directors and officers, and individual producers ("the Defendants") infringed his copyright in an undeveloped children's television series, Les Aventures de Robinson Curiosite, ("Curiosite"), by producing and broadcasting a similar children's television show, Robinson Sucroe ("Sucroe"). The Court unanimously upheld the lower Quebec Superior Court's findings that Sucroe infringed Curiosity, but maintained in part the decision of the Quebec Court of Appeal that reduced the damages granted by the lower Court, to roughly $4 million in remedies and costs instead of the original $5.2 million.

The decision touched on three main topics: infringement, liability, and remedies.


The Court upheld the trial judge's finding that Sucroe copied the Plaintiff's overall architecture for a children's television show; the graphic appearance of the main protagonist; the personality traits of the main protagonist and several other characters; and the graphic appearance of some of the settings, all of which existed independent of the public domain novel, Robinson Crusoe. It deferred to the lower Court's findings, since what amounts to "substantial" is an issue of mixed fact and law. The trial judge had relied on evidence of how the two works used similar atmosphere, dynamics, motifs, symbols and structure to convey meaning. 

Before assessing whether Sucroe copied a "substantial part" of Curiosite, the Court emphasized the central principle of balance under the Copyright Act ("the Act") – the balance between ideas/public domain and protected original expression. Although general stock incidents in fiction or drama are in the public domain, the Court held original expression of such public domain elements worthy of copyright protection. The decision affirms that copyright can protect fictional characters – both their appearance and personality traits.

The Court recognized that what is "a substantial part" varies between cases: it is "a flexible notion" that is "determined in relation to the originality of the work". The Act protects against both literal and non-literal copying, for example, as noted by the Court, "the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original". Any colourable imitation is a copy. 

The Court endorsed a qualitative and holistic approach. The cumulative effect of the features copied from the work must be considered to determine whether those features amount to a substantial part of the skill and judgment expressed in the work as a whole. The Court's focus on the "effect" of the copying is significant, particularly since it noted that both patent and latent, and perceptible and intelligible similarities are relevant in assessing substantial similarity. "Perceptible" similarities are those that can be directly observed. "Intelligible" similarities, such as atmosphere, dynamics, motifs, and structure, affect a viewer's experience of the work indirectly. The Court emphasised that the quality rather than quantity, of the taking was most important.

The Court did not reject applying an "abstraction-filtration-comparison" test to other works (e.g. computer programs). 

Furthermore, the focus should be whether a substantial amount of the plaintiff's work was copied, not if the plaintiff's work amounts to a substantial part of the Defendant's work. Altering features or integrating features into a notably different work may not avoid infringement. However, the Court confirmed that, in some cases, substantial differences between works could make the copying non-infringing i.e. "if the differences are so great that the work, viewed as a whole, is not an imitation but rather a new and original work, then there is no infringement".

The Court clarified the relevant perspective in assessing infringement is that of the "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". It also endorsed the use of experts, recognizing that laypeople may not detect similarities between the works otherwise apparent to one "reasonably versed in the relevant art or technology." In this case, relying on a "layperson" standard rather than an expert would have shifted the question to whether the copied features were apparent to a five-year-old.


The Court found that corporate directors and officers would not be personally liable unless they engaged in "deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement or reflected an indifference to the risk of it". Directors who had no knowledge of Robinson's work were not held liable, and circumstantial evidence was not enough to support a "serious, precise and concordant" presumption of personal liability. 


The Court held it appropriate to disgorge the profits of the parties who had actually made money and confirmed the Court of Appeal's finding that liability be imposed on the Defendants "severally," not "jointly and severally." 

The damages decision turned mostly on the Court's interpretation of specific provisions in the Quebec Civil Code and Charter. The Court rejected that non-pecuniary damages caused by psychological suffering should be capped by the amount established in the Andrews caselaw trilogy, limiting those cases to instances of physical bodily harm. Since the harm suffered by Robinson was akin to defamation, he was awarded non-pecuniary damages similar to Quebec defamation cases. Punitive damages were raised to $500,000.

Concluding Remarks

With Robinson, the Court continues to interpret the Act in a liberal manner – this time for creators. The decision supports a broad threshold for "originality," discusses the balance between public domain ideas and protectable expression, and confirms that sufficiently defined fictional characters are subject to copyright. The analysis focused less on whether a particular work should get a "thin" or "thick" scope of protection depending on its level of originality, and more on assessing the cumulative "effect" of the copied elements on the audience. Of course, access to a work and copying (including by colourable imitation) must still be proven. The decision also provides a higher standard for assessing whether a substantial part was copied which may lead to greater use of experts in copyright cases. Given the Court's broad level of protection and the significant damages award, many are pondering the chilling effect this decision may have on the entertainment industry. 

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jill Jarvis-Tonus
Tamara Céline Winegust
Catherine Lovrics
Similar Articles
Relevancy Powered by MondaqAI
Goldman Sloan Nash & Haber LLP
Osler, Hoskin & Harcourt LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Goldman Sloan Nash & Haber LLP
Osler, Hoskin & Harcourt LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions