The Supreme Court of Canada recently released its long-awaited
judgment in Robinson v Films Cinar Inc, 2013 SCC 73, which deals with issues of
non-literal infringement of a children's television show
loosely inspired by Daniel Defoe's Robinson Crusoe.
Copyright owners should now look beyond mere literal copying of
their work and consider that, though ideas themselves are not
afforded protection by the Canadian Copyright Act,
intangible aspects of their work may be protected and expert
testimony may assist in identifying latent infringement.
Claude Robinson ("Robinson") is an artist who, in
1982, prepared sketches, storyboards, scripts synopses and
promotional material for a new children's television show
titled "Robinson Curiosity"
("Curiosity"). After having obtained copyright
registration for his work in 1985, he attempted but failed to
attract investors through a partnership with the Cinar Corporation
("Cinar"). When a new children's television show
produced by Cinar and titled "Robinson
Sucroë" ("Sucroë") aired in
1995, Robinson perceived it as a copy of Curiosity and
launched suit against Cinar, co-producers, distributors and
individuals. Both the Quebec Superior Court and Court of Appeal
found that copyright subsisted in Curiosity,
found that it was infringed by Sucroë, and
awarded Robinson damages and costs.
Before the Supreme Court, the parties agreed that
Curiosity was an original work to which the alleged
infringers had access and that the Curiosity and
Sucroë shows shared similarities, namely that they
featured protagonists inspired by Robinson Crusoe who wore a beard,
glasses and a straw hat and lived on an island interacting with
other characters who shared common personality traits. However,
Cinar disagreed that the similarities constituted a substantial
part of Curiosity and argued that they were drowned out
amidst important differences, namely that many secondary characters
in Curiosity were animals, whereas they were mostly human
in Sucroë, and that the latter show also featured
pirate "villains". Also, and perhaps unsurprisingly,
Curiosity's protagonist's main personality trait
was curiosity, whereas the protagonist in Sucroë was
not particularly curious.
With regard to the test for infringement, the Supreme Court
favoured a holistic approach whereby it considered the cumulative
effect of the copied features and assessed whether those features
amounted to a substantial part of Robinson's expression in his
original work. The Court confirmed that the focus of this exercise
is the quality of what was taken rather than the quantity, and that
in cases of non-literal copying, "latent" or
"intelligible" similarities, such as the use of
atmosphere, dynamics, motifs, symbols and structure to convey
meaning, can also be relevant.
In this case, many of such latent similarities were identified
by an expert semiologist (one who studies "signs and symbols
and how they convey meaning") who testified for Robinson at
trial. Because infringement "must be assessed from the
perspective of the lay person in the intended audience," Cinar
argued that this expert evidence was inadmissible since it was
unnecessary. The Supreme Court disagreed, noting that the nature of
some works calls for expert evidence, namely when the work is too
complex for a judge to fairly assess (e.g. two pieces of classical
music), or in cases such as this one, where a rigid application of
the test would unduly restrict the Court's ability to answer
the central question. In this case it "would shift the
question to whether the copied features are apparent to a
five-year-old." The Court therefore upheld the trial
judge's holding that the evidence was admissible and concluded
that Sucroë reproduced a substantial part of
In addition to awarding Robinson damages as well as profits
earned from Sucroë, the Supreme Court awarded him
profits earned from the sales of Sucroë's
soundtrack. As there was no evidence that the soundtrack could have
been commercialized in the absence of the infringement of
Curiosity, the soundtrack's profits were caused by the
infringement and Robinson was entitled to such profits.
Though this case does not bring substantial changes to the law
of copyright in Canada, it does confirm the potentially wide scope
of copyright protection. Not only can works be non-literally
infringed through latent similarities, but rights holders may be
able to obtain profits made from works that were not at all
infringing, so long as they were caused by the infringement.
The preceding is intended as a timely update on Canadian
intellectual property and technology law. The content is
informational only and does not constitute legal or professional
advice. To obtain such advice, please communicate with our offices
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
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).